Registrar, Alcohol and Gaming Commission Ontario v. 1705655 Ontario Limited O/A Tru’s Grillhouse, 2008 CanLII 35250

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

BETWEEN:

Registrar, Alcohol and Gaming Commission Ontario Registrar

-and-

1705655 Ontario Limited O/A Tru’s Grillhouse Licensee

DECISION

Panel: David C. Gavsie, Chair of AGCO Guy Maurice, Chair of Panel

Decision Date: June 2, 2008 Hearing Location: Windsor, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Fax: (416) 326-5566 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Phillip Morris, Representative 1705655 Ontario Limited, Licensee ) Maria Tsiribis, on her own behalf

Authorities

G.T. Roadhouse and Restaurant (July 4, 2002), unreported decision of the AGCO G.T. Roadhouse and Restaurant (September 27, 2002), unreported decision of the AGCO

Hearing

1A hearing of the Board of the Alcohol and Gaming Commission of Ontario (“AGCO”) was held in Windsor on April 1, 2008 with respect to Notice of Proposal number 16022 dated February 13, 2008 to Refuse to Remove Condition (the “NOP”) on the liquor licence of 1705655 Ontario Limited (the “Licensee”) operating as TRU’S GRILLHOUSE, 220 Riverview Drive, Chatham, Ontario, N7M 5Z8 (the “Premises”), licence number 22198.

Decision

2After considering all the evidence and submissions the Board DENIES the Application to remove part of a condition on the Licence. Reasons follow.

Preliminary Matters

3Maria Tsiribis, the sole officer, director and shareholder of the Licensee, waived its right to have representation at the hearing and indicated she personally would represent the corporate Licensee.

Licensee’s Evidence

4Maria Tsiribis gave evidence. She stated that she wants to have the final sentence of the condition on the Licence removed. That sentence reads:

“George Tsiribis is also not permitted in the licensed premises during operating hours.”

5Mrs. Tsiribis said that George Tsiribis is her husband and that she wants him permitted in the Premises so that she, he and the kids can have dinner together. She said that is her only request.

6In exchanges between Mr. Morris and Mrs. Tsiribis, it was ascertained that a previous notice of proposal to revoke the liquor licence of Frog and Fiddle was not heard because George Tsiribis had surrendered the licence. The Frog and Fiddle was the name of the business previously carried on in the Premises.

7Mrs. Tsiribis then applied for a liquor licence. She was interviewed by the Ontario Provincial Police (“OPP”) attached to the AGCO and saw the report of that interview. The OPP were concerned that Mrs. Tsiribis would be a “front” for her husband.

8George Tsiribis has been running the Satellite Restaurant. Mrs. Tsiribis is a 50% shareholder in it, but is neither a director nor officer. She does not manage it. Mrs. Tsiribis has never met an AGCO inspector regarding Satellite Restaurant. It is run by her husband, George.

9Mrs. Tsiribis owns 100% of River Rock which is a bar. She is the sole officer and director. She has never met an AGCO inspector regarding River Rock.

10Mrs. Tsiribis said that the former manager of River Rock, Rick Strain, used to liaise with police and the inspector. He left recently, so now George Tsiribis does that. Mrs. Tsiribis said she controlled the managers and she has signing authority.

11The previous name of The Frog and Fiddle had been G.T. Roadhouse. George Tsiribis owned the business and had run it as a licensed establishment. A notice of proposal to revoke that licence was issued, and the licence was surrendered. Both The Frog and Fiddle and G.T. Roadhouse previously carried on business in the Premises.

12Mrs. Tsiribis applied for a new licence. She stated that the OPP Detective Constable who interviewed her was concerned that she was a “front” for her husband. As a result a notice of proposal to review the application was issued. Mrs. Tsiribis agreed to conditions including having Mr. Tsiribis excluded from the Premises in order that the liquor licence could be issued.

13Mrs. Tsiribis said she is now asking that the condition be changed because she wants her husband permitted in the Premises. She has the local business improvement association in the Premises, and Mr. Tsiribis cannot be present when they come in.

14In answer to a question what are the changes in circumstances, Mrs. Tsiribis said she is not a “front” for her husband. She is quite capable to run the business. At the present time, her children come into the Premises but her husband cannot. She is not asking for him to be permitted to run the business.

15The business is no longer a bar. It is now a family restaurant. Tru’s is a replacement for G.T. Roadhouse and The Frog and Fiddle. It features fine dining. It has annual food sales of $400,000, and total annual alcohol sales at March 31, 2008 of $147,000.

16Mrs. Tsiribis said she runs the business successfully on her own now. The figures speak for themselves. Mr. Tsiribis has absolutely nothing, to do with the operation of the business. She asks him questions, and gets his advice and suggestions.

17Mrs. Tsiribis stated that the hours of operation are from 11 a.m. to 8 p.m. on Monday and Tuesday, and from 11 a.m. to 9 p.m. on Wednesday to Saturday. On Sunday she is trying out brunch hours from 11 a.m. to 2 p.m., and then 3 or 4 hours in the evening. On average, she works 7 hours a day. On Saturday she is in the Premises from 5 or 6 p.m. to closing.

18Mrs. Tsiribis said when she agreed to the condition being put on her licence, she understood what it meant.

19On cross-examination, through Mrs. Tsiribis, Mr. Morris placed a number of previous Board decisions and other documents into evidence. They were:

a) decision dated July 4, 2002 in the matter of G.T. Roadhouse and Restaurant. The Licensee was 981034 Ontario Inc. The Board made findings of infractions under both section 29 of the Liquor Licence Act (the “LLA”) (liquor sold and supplied to intoxicated person) and subsection 45(1) of Ontario Regulation 719/90 under the LLA (the “O.Reg”) (permit intoxication in premises)(Ex.1);

b) decision as to sanction dated September 27, 2002 in the matter of G.T. Roadhouse and Restaurant. The Licensee was 981034 Ontario Inc. The Board having made findings in Ex.1, imposed a 7 day suspension;

c) a decision dated November 24, 2003 in the matter of G.T. Roadhouse and Restaurant. The licensee was 981034 Ontario Inc. It was an “agreed” based on a finding under subsection 45(1) of the O.Reg. A 13 day suspension was agreed to by the Registrar and the licensee, and was imposed (Ex.3);

d) a notice of proposal dated July 25, 2005 was issued against The Frog and Fiddle Pub (formerly G.T. Roadhouse and Restaurant). The licensee was 1511298 Ontario Inc. It alleged violations of section 29 of the LLA and subsection 45(1) of the O.Reg (Ex.4);

e) a supplementary notice of proposal dated August 31, 2005 was issued against The Frog and Fiddle Pub, alleging further violations of section 29 of the LLA and subsection 45(1) of the O.Reg. The licensee was 1511298 Ontario Inc. (Ex.5);

f) a further supplementary notice of proposal dated April 5, 2006 was issued against The Frog and Fiddle Pub alleging violations of section 43 and subsection 34(1) of the O.Reg (Ex.6). The licensee was 1511298 Ontario Inc.

g) a voluntary surrender of the licence for The Frog and Fiddle Pub dated May 10, 2006 signed by George Tsiribis. The licensee was 1511298 Ontario Inc. (Ex.7);

h) a notice of proposal to review an application for a licence dated January 8, 2007(Ex.8). The licensee was 1705655 Ontario Limited. The application was for Tru’s Grillhouse at the same street address in Chatham as G.T. Roadhouse and Restaurant, and then The Frog and Fiddle Pub carried on business. The allegation made by the Registrar was that Maria Tsiribis, as the sole officer, director and shareholder of the corporate applicant was a “front” for her husband, George Tsiribis.

i) report of Det. Const. Doug Knight of the OPP having an occurrence date of September 11, 2006. The report was made with respect to the application referred to in the immediately preceding subparagraph 19(h). The conclusion on page 6 was that Maria Tsiribis was a “front” for George Tsiribis, and there was no reason to believe that George Tsiribis would not be involved in the operation of the establishment (Ex.9);

j) conditions of approval to be attached to liquor licence 22198 in the name of 1705655 Ontario Limited signed by Maria Tsiribis on March 12, 2007 (Ex.10); and

k) letter to the AGCO from Maria Tsiribis dated November 30, 2007 applying to have the last sentence of the condition removed from the Licence (Ex.11).

Registrar’s Evidence

20AGCO Inspector Stephen Dimoff was called to give evidence. He has been an AGCO Inspector since April 2001. He worked in the Chatham area from April 2001 to January 2006.

21Insp. Dimoff said he inspected G.T. Roadhouse and then The Frog and Fiddle in Chatham dozens of times. Each was a bar. The owner was George Tsiribis.

22Insp. Dimoff stated that he attended the Satellite dozens of times. It is partly a bar and partly a restaurant. He never met Maria Tsiribis there. He believed George Tsiribis was the owner. At least, Insp. Dimoff said he always dealt with George Tsiribis.

23Insp. Dimoff said he had also been at River Rock dozens of times. He had never met Maria Tsiribis there. He thought George Tsiribis was the owner because he always dealt with him or the manager. George Tsiribis made the important decisions.

24AGCO Inspector Kevin Holman gave evidence. He has been an AGCO Inspector since January 3, 2006. Prior to that he was a member of the Windsor Police Service for 34½ years where he was involved with LLA enforcement.

25Insp. Holman was initially assigned to Chatham-Kent when he started at the AGCO.

26Insp. Holman said he was familiar with the Satellite Restaurant in Chatham, having been there well over 30 times. He never met Maria Tsiribis there. He only dealt with George Tsiribis. He met there on occasion with Mr. Tsiribis and members of the Chatham police.

27Insp. Holman said he has also been to River Rock, formerly the Club Illusion over 30 times in the past 2 years. He has never met Marisa Tsiribis at the River Rock. He dealt with George Tsiribis, then in the past year Rick Strain as the manager.

28Insp. Holman stated that he met with Maria Tsiribis regarding her application for a licence for Tru’s Grillhouse 2 or 3 times, and has been there since she obtained their licence. He never met Maria Tsiribis there, just Rick Strain and Sonia.

29Insp. Holman said there was a recent meeting at the Satellite attended by himself, George Tsiribis, Rick Strain and 2 constables from the Chatham Police Service. The meeting was about River Rock. Maria Tsiribis only attended the meeting near the end.

30Det. Const. Douglas Knight gave evidence. He joined the OPP in May, 1988. He was seconded to the AGCO, now working in gaming. From September 2002 to April 30, 2007, he was working on the alcohol side of the AGCO.

31Det. Const. Knight confirmed that he did the liquor licence inspection for Tru’s Grillhouse, and that he authored the inspection report, Ex.9.

32Det. Const. Knight said he had a concern with the application. George Tsiribis had recently surrendered the liquor licence for The Frog and Fiddle Restaurant. Now, Maria Tsiribis was making a new application. His question was whether George Tsiribis was using Maria Tsiribis as a “front” to get a licence.

33Det. Const. Knight met with Maria Tsiribis and asked her to provide documents. She said that Det. Const. Knight should go to her accountant. He did. He asked the accountant who was funding the restaurant. He was told funds came from a family trust.

34Det. Const. Knight said at the Satellite, Mrs. Tsiribis was a 50% owner shareholder. The other 50% was owned by a family trust. The accountant told him that basically for tax purposes, the family trust was used. It provided the financing. The beneficiaries of the trust were Mr. and Mrs. Tsiribis and their children

35With regards to the Satellite, George Tsiribis was the only officer and director. It has been in business since 1979. Det. Const. Knight stated that in 2005, it received a 21 day suspension.

36For River Rock, Mrs. Tsiribis is the only shareholder, officer and director. It has been in business since July 2000.

37In the Case of Tru’s Grillhouse, Mrs. Tsiribis is the sole shareholder, officer and director.

38Det. Const. Knight stated that in the case of G.T. Roadhouse (subsequently The Frog and Fiddle), George Tsiribis was the sole shareholder, director and officer.

39Aside from Tru’s Grillhouse, Mr. Tsiribis and Mrs. Tsiribis each had signing authority for the Licensee. For Tru’s Grillhouse, Mrs. Tsiribis had sole signing authority.

40When Det. Const. Knight interviewed Mrs. Tsiribis at the time of the application for a licence at Tru’s Grillhouse, Mrs. Tsiribis was adamant that she alone would be the operator.

Licensee’s Submissions

41Mrs. Tsiribis stated that she wanted the condition removed that prohibited her husband from being in the Premises during operating hours so that the whole family can socialize together.

Registrar’s Submissions

42Mr. Morris said the Registrar is opposed for 2 reasons. First, there needs to be a change of circumstances and there is none. The business of the Licensee at the premises was always intended to be a family restaurant. This has not changed.

43Second, it is clear from the evidence that regardless of the corporate structure, the Satellite, River Rock and G.T. Roadhouse are all operated by George Tsiribis. He got into trouble with G.T. Roadhouse (subsequently The Frog and Fiddle), could not fight it and surrendered the licence.

44Mr. Morris said instead, Maria Tsiribis applied for a licence for Tru’s Grillhouse. Her experience and knowledge in the business are limited. The Registrar gave Maria Tsiribis a chance with the condition.

45Mr. Morris said that Mr. Tsiribis is a known businessman in Chatham. He is running places. The evidence regarding Mrs. Tsiribis’ hours at the business was “iffy”. Inspector Holman goes there and Mrs. Tsiribis is never there.

46Mr. Morris said it has been all too easy in the past for a person to get a front where the person has been excluded, yet they still operate it. It is too easy to say “I am just there visiting”.

47There is no change in circumstances. The factual basis for amending the Licence has not been substantiated. There is a general policy reason to preserve the condition, namely that we are dealing with an excluded person.

Decision and Reasons

48The following condition (the “Condition”) was placed on the Licence when it was issued in 2007:

George Tsiribis is not to be permitted to be an officer, director or shareholder of the licensee corporation, nor is he permitted to be an employee or manager of the licensed premises. George Tsiribis is also not permitted in the licensed premises during operating hours.

49Mrs. Tsiribis consented to the Condition – Ex.10.

50Mrs. Tsiribis applied to the AGCO to have the last sentence of the Condition removed – Ex 11. A Vice-Chair of the AGCO, being a member of the Board of the AGCO, refused to remove the last sentence of the Condition in that there was no change in circumstances to justify its removal – paragraph 4 of the NOP.

51At the hearing, two reasons were advanced as to why there was a change of circumstances:

a) the Premises were now a family restaurant whereas before it was a bar; and

b) permitting George Tsiribis in the restaurant to be, in essence, a patron would enable the Tsiribis family to socialize together and/or enable Mr. Tsiribis to meet the local business improvement association in the Premises.

52When questioned, Mrs. Tsiribis presented no evidence the Premises had changed into a family restaurant from a bar. Even if she had, she would have then had to persuade the Board that such a change amounted to a change of circumstances in order to support her application for the removal of the last sentence of the Condition.

53Enabling Mr. Tsiribis to socialize with family and/or business acquaintances is not a change of circumstances. The evidence shows that Ms. Tsiribis has other establishments to host or meet family and/or acquaintances. There is also no evidence that the family home cannot be used for these purposes.

54Accordingly the Licensee has not demonstrated that there is a change of circumstances.

55Therefore, the Board DENIES the Application by 1705655 Ontario Limited operating as TRU’S GRILLHOUSE, 220 Riverview Drive, Chatham, Ontario, N7M 5Z8, licence number 22198.

DATED AT TORONTO THIS 2nd DAY OF JUNE, 2008