Registrar, Alcohol and Gaming Commission Ontario v. N-One Azteca Sports Inc., 2008 CanLII 6133

ALCOHOL AND GAMING COMMISSION OF ONTARIO

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

B E T W E E N:

Registrar, Alcohol and Gaming Commission Ontario

Registrar

-and-

N-One Azteca Sports Inc. O/A Beautiful Centroamerica

Licensee

-and-

Rosston Nigel Edwards intending to operate as Riston’s Restaurant and Lounge

Applicant

DECISION

Panel: Brian J. Ford, Board Member Dianne Axmith, Board Member

Decision Date: January 25, 2008

Hearing Location: Toronto, 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 ) Sujin Chan, Representative Rosston Nigel Edward, Applicant ) On his own behalf

Allegations

1. A hearing into a Notice of Proposal (“NOP”) number 15443 dated July 11, 2007 to suspend liquor licence number 810383 issued to N-One Azteca Sports Inc. (the “Licensee”) operating as BEAUTIFUL CENTROAMERICA, 1738 St. Clair Avenue West, Toronto, Ontario, M6N 1J3, on the basis of alleged violations of subsections 45(1) and 45(2) of the Liquor Licence Act (“LLA”) and section 29 and subsections 25, 34, 44(1), 45(1) and 50(c) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA and a hearing into NOP number 15470 dated July 23, 2007 to refuse an application to transfer liquor licence number 810383 to Rosston Nigel Edwards (the “Applicant”) intending to operate as RISTON’S RESTAURANT BAR AND LOUNGE, at the address above, pursuant to subsections 6(2)(d) and (f) of the LLA. The hearing was held on December 6, 2007 in the City of Toronto.

Decision

2. After considering all the evidence and submissions the Board FINDS the Applicant violated subsections 34(1), 44(1), and 45(1) and section 29 of the O.Reg and subsections 6(2)(d) and (f) of the LLA. The Board DISMISSES the alleged violations subsection 25(1), 45(1) and 45(2) of the O.Reg. The Registrar WITHDREW the alleged violation of subsection 50(c) of the O.Reg. The Board therefore DENIES the transfer of the liquor licence. Reasons follow.

Preliminary Matters

3. The Applicant waived his right to legal representation, choosing to represent himself. The principal of the Licensee, Mr. Angel Eudoro Orozco, did not appear at the hearing.

4. Ms. Chan advised the Board that the Registrar wished to have both NOP’s (15443 & 15470) heard at the same time and she moved to proceed ex parte on NOP 15443 given the Licensee’s failure to appear although properly notified. Ms. Kristina Krause of the AGCO Hearings Department testified with respect to service of the Notice of Hearing. The Board was satisfied the Licensee received effective notice of the hearing. However, Ms. Krause also informed the Board that Mr. Orozco did not request a hearing of NOP 15443. Ms Chan was not aware of this fact.

5. In these circumstances, the Board determined that, without a request for hearing from the Licensee, it had no jurisdiction to hear NOP 15443. Ms. Chan advised the Board that the Registrar would issue a carryout order against the Licensee. The carryout order was issued that day and made Exhibit 2. The Board proceeded to hear the transfer application.

Registrar’s Evidence

6. Amanda Higuera, an AGCO Inspector, met with the Applicant and conducted a compliance check at Beautiful Centroamerica in February 2007. She noted a large opening in the wall of 1738 St. Clair West (1738) leading into a large room at a separate municipal address, 1740 St. Clair Avenue West (1740). Several patrons in 1740 were consuming alcohol. She advised Mr. Edwards that 1740 was not licensed. Mr. Edwards responded that the previous owner and licence holder told him that the room was licensed. She advised him that was not true and that he could be charged for permitting patrons to bring their drinks into 1740. She confirmed this information with Mr. Edwards on March 5, 2007 after checking the master file at AGCO.

7. This information was further clarified at a meeting on March 13, 2007 in the AGCO Toronto offices. The meeting was attended by Inspector Higuera and Mr. David Baxter of the AGCO, Angel Orozco, and Mr. Rosston Edwards.

8. Mr. Edwards asked Inspector Higuera why he could not continue to operate the establishment when his contracting out permit was valid until 2008. She replied that once an NOP was issued he was not allowed to operate. Asked why he was not told this by anyone at the AGCO Inspector Higuera replied that it was stated in the contracting out document. The authorization to contract out was made Exhibit 1.

9. Constable Laura McConnell of the Toronto Police Service attended the Premises on May 3, 2007 at 12:45 am. Approximately ten people were inside the establishment. Two patrons were in 1740 drinking from plastic cups. She asked them what they were drinking and was advised that it was beer. She spoke to Mr. Edwards, checked the liquor licence and confirmed only 1738 was licensed. When she pointed this out to Mr. Edwards he advised that he had talked to the AGCO and a new licence was in the mail.

10. Cst. McConnell also noted the washroom was behind the bar which encouraged unauthorized people going behind the bar. A female who was not an employee was observed behind the bar. There was no food menu or service and no menu for non-alcoholic drinks. 1740 did not meet the Toronto Fire Code in that the rear exit did not have a crash bar or latch but was dead bolt locked. Cst. McConnell agreed there were no fire code violations in 1738.

11. Detective Wayne Bates of the Toronto Police Service attended the premises on March 24, 2007 at approximately 4:10 a.m. with Detective John Mizzoni.

12. There was a D. J. working who stopped when they entered the establishment. He observed a female patron carrying a beer bottle walking from 1740 into 1738. A male walked from 1740 to the area behind the bar. There were several males in 1740 drinking from plastic cups. There were three patrons at one table including a female with a bottle of Moosehead beer. There was a ledge around a large part of 1740 with a lot of plastic cups and eight bottles of Labatt Ice on it. The cups smelled of alcohol.

13. A female patron spoke to Det. Bates and told him she came to the premises to get drunk. She was unsteady on her feet, her speech was slurred, and her eyes glazed. A male patron was being held up by two females. His speech was slurred to the point that he was incoherent and he could not walk on his own.

14. There was a female behind the bar working a computer to control the music and she was drinking and confrontational with the officers. Mr. Edwards told her to calm down.

15. Asked why there were patrons still present in the bar, Mr. Edwards stated he tried to get them to leave but they would not. Det. Bates noted that it did not appear that anyone was asking patrons to leave. Mr. Edwards also said that he was not aware of the requirement to remove all signs of sales and service of alcohol within forty-five minutes of closing (2:00 a.m.). Mr. Edwards told him that 1740 was included in the license. The detectives cleared the establishment of patrons and then left.

16. On March 26, 2007 at 2:50 a.m. Detective Bates, Small, and Mizzoni parked a short distance away and made observation of the premises. At 2:55 a.m. two male patrons exited the establishment. At 2:59 a.m. a male patron exited the front door of the establishment. This person was unsteady on his feet as he tried to put on his coat and was observed drinking from a clear bottle. Det. Bates did not know what was in the bottle and he did not stop or speak to this individual.

17. At 3:05 a.m. the detectives attempted to enter the premises. The front door was locked. The detectives banged on the door to attract attention and displayed their police badges. Mr. Edwards was behind the bar and there appeared to be a lot of commotion in the premises. One of the officers tried the door to 1740 but it was locked as well. Det. Bates stated that Mr. Edwards looked at the police officers and then walked into 1740. Two females came out of 1740 with a couple of bottles and put them on the bar. It took about 60 seconds before Mr. Edwards let them in.

18. Once inside Det. Bates went into 1740 and observed a D.J. in the process of taking down his equipment. Det. Bates noted there were no signs advising people not to enter 1740 with alcohol.

19. Detective Vern Small’s testimony was consistent with Det. Bates’ evidence. A female had come from 1740 just prior to the officers entering and put two bottles of Heinekin on the bar. He stated these bottles were cold to the touch as was a half full bottle of Labatt Blue. Asked what happened to the bottles, the Detective replied he did not know but they were probably taken as evidence.

Licensee’s Evidence

20. Mr. Rosston Edwards advised the Board he is the transfer applicant and owner, but not the licence holder, of Beautiful Centroamerica/Riston’s Restaurant Bar and Lounge. Mr. Edwards bought the business from Mr. Angel Orozco. At the time that he bought the business Mr. Orozco told him 1740 was licensed and the two addresses were all part of 1738.

21. Mr. Edwards admitted meeting with Mr. Baxter of the AGCO and Mr. Orozco in March 2007. He thought that all he needed was a letter from the Fire Marshall to licence the area of 1740. He confirmed that he was unaware that he had to clear signs of sale and service of alcohol within 45 minutes of closing until he took the Smart Serve training course. He now has a Smart Serve certificate which he obtained after the events of March 24 and 26, 2007. He admitted that he was new to the industry and did not really understand the laws governing the sales and service of alcohol.

Registrar’s Submissions

22. Ms. Chan asked the Board to refuse to transfer the liquor licence number 810383 under subsections 6(2)(d) and (6)(2)(f) of the LLA. She submitted the evidence was clear Mr. Edwards permitted liquor to be consumed in the unlicensed portion of the premises despite being warned this was not allowed. Further, he had on two occasions served liquor outside the prescribed hours, failed to clear signs of service, and permitted drunkenness in the premises. Finally, his behaviour on March 26, 2007 in failing to open the door to the police officers obstructed the police inspection and was a failure to facilitate an inspection.

Licensee’s Submissions

23. Mr. Edwards stated he had a shaky start and tried to abide by the rules of the LLA and that there had been no major incidents since those in March. He asked the Board to give him a second chance to show that he can follow the rules. He is not blaming anyone else for his mistakes.

Reasons & Findings

24. The evidence of Cst. McConnell, and Det. Bates with respect to observing patrons drinking in 1740 was unchallenged by the Licensee. The Board is satisfied Mr. Edwards was aware that the area was not licensed. In these circumstances, the Board FINDS a breach of subsection 34(1) of the O.Reg on March 24, 26, and May 3, 2007. 2007.

25. The Board heard evidence the police attended the establishment on March 24 and March 26, 2007 and observed patrons consuming alcohol in the premises outside of prescribed hours. There were also numerous partially full and empty plastic glasses that had or contained beer and alcohol and partially full beer bottles on the bar, the tables and ledges of the premises. This evidence was not contested by the Applicant. The Board therefore FINDS a breach of section 29 of the O.Reg. for failure to clear 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. However, the Board did not hear any evidence that the officers observed the sale or service of alcohol after the prescribed hours. The Board notes that the officers stated that they touched two partially full bottles of beer and that they were cold to the touch. It is also noted that this was within an hour of last call and that it was a night in March when temperatures are low and the beer would have stayed cold longer. The Board therefore DISMISSES the alleged breach of subsection 25(1) of the O.Reg with regard to the sale and service of alcohol after the prescribed hours.

26. Det. Bates testified that, on March 24, 2007, he spoke with an intoxicated female patron. She was unsteady on her feet, her eyes were glazed and her speech was slurred. She advised Det. Bates that she came to the establishment to get drunk. Also on that date he noticed a male patron being held up by two females and that this person was so drunk that he could not stand on his own. His speech was slurred to the point that he was incoherent. The Board FINDS that on the balance of probabilities both patrons were drunk and, there was a breach of subsection 45(1) the O.Reg with regard to permitting drunkenness. With respect to the patron observed leaving the premises on March 26, 2007 who appeared unsteady on his feet while trying to put on his coat, the officers did not speak to this person. The Board is not satisfied there is sufficient evidence to make a finding with regard to this individual.

27. Cst. McConnell testified she observed a female patron, behind the bar and that this person was not an employee. There was no explanation from Mr. Edwards at the time as to why this person was behind the bar. The Board FINDS a breach of subsection 44(1) of the O.Reg with regard to having allowed a person who was not employee behind the bar while liquor was being sold or served.

28. The Board DISMISSES the alleged breaches of subsections 45(1) and (2) for failure to facilitate and obstruction of an inspection. The police evidence was that the door was opened approximately 60 seconds after they attempted to enter. The Board notes that in his evidence Det. Bates informed that Board that prior to entering the premises he and the other officers parked near the premises and observed people trying to gain entrance and that the were refused. It is entirely possible that the Applicant may have mistaken the officers for patrons wanting entrance and took a little longer in answering the door. The Board also notes that the officers were not in uniform. The Board is satisfied, on a balance of probabilities this miniscule delay does not constitute either an obstruction or a failure to facilitate.

29. Given the above findings, the Board is satisfied the Applicant was carrying on activities in contravention of the LLA and its Regulations. The Board is further satisfied, despite Mr. Edwards recent attempts to educate himself on proper management of a licensed premises, that his past conduct affords reasonable grounds for the belief that the business will not be carried on in accordance with the laws and with integrity and honesty. In particular the Board notes Mr. Edwards persisted in allowing patrons to drink in the unlicensed area of the premises despite being repeatedly advised that doing so was a contravention of the regulations. Therefore, the Board DENIES the Application to transfer on the grounds of subsection 6(2)(d) and (f) of the LLA.

Conclusion

30. The application to transfer the liquor licence number 810383 operating as BEAUTIFUL CENTROAMERICA, 1738 St. Clair Avenue West, Toronto, to Rosston Nigel Edwards intending to operate as RISTON’S RESTAURANT BAR AND LOUNGE is DENIED.

DATED AT TORONTO THIS 25^th^ DAY OF JANUARY, 2008

BRIAN J. FORD, BOARD MEMBER DIANNE AXMITH, BOARD MEMBER

BJF/sm