Registrar, Alcohol and Gaming Commission Ontario v. Mackie’s Restaurant Bar & Grill Inc., 2008 CanLII 91843

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-

Mackie’s Restaurant Bar & Grill Inc. O/A Mackie’s Restaurant Bar & Grill

Licensee

DECISION

Panel: Patricia McQuaid, Vice-Chair Joan Lougheed, Board Member

Decision Date: October 14, 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 ) Richard Kulis, Representative

Mackie’s Restaurant Bar & Grill Inc., Licensee )

Allegations

1. A hearing into Notice of Proposal number 16542 dated August 1, 2008 to revoke a liquor licence and an Order by the Registrar dated August 1, 2008 to immediately suspend liquor license number 203380 issued to Mackie’s Restaurant Bar & Grill Inc. (the “Licensee”) operating as MACKIE’S RESTAURANT BAR & GRILL, 18 Queen Street East, Brampton, Ontario, L6V 1A2, on the basis of an alleged violation of clause 6(2)(d) of the Liquor Licence Act (“LLA”) and alleged violations of subsection 45(1) of the LLA and section 29 and subsections 15(1), 45(1), 45(2), 60(2), 64(1) and 64(2) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, convened on September 16, 2008, in the City of Toronto.

Decision

2. After considering all the evidence and submissions the Board makes a finding under clause 6(2)(d) of the LLA, and finds violations of section 29 and subsections 15(1), 45(1), 45(2), 60(2), 64(1) and 64(2) of the O.Reg. The Board DISMISSES the allegation of violation of subsection 45(1) of the LLA. Reasons follow.

Preliminary Matters

3. Ms. McIntosh, the principal of the corporate licensee, was not present at the commencement of the hearing. Ms. McIntosh had attended on the previous hearing date of August 20, 2008 at which time she requested an adjournment so that she could retain legal representation. That adjournment was granted and the interim suspension was ordered to continue to the next hearing date.

4. At approximately 10:00 a.m. on September 16, 2008, no representative of the Licensee being in attendance, Mr. Kulis made a motion to have the hearing proceed ex parte. Ms. Kristina Krause was called as a witness in support of the motion.

5. Ms. Krause is the Case Management Coordinator for the Hearings Department of the Alcohol and Gaming Commission of Ontario (AGCO) and in that role schedules hearings and sends out notices of hearing. A notice of hearing for September 16, 2008 was sent to the parties (Exhibit 1). Further, the Hearings Department, as is its usual practice, called the contact numbers for the Licensee given on the Request for Hearing form the week prior to the hearing to remind her of the hearing date. Both home and work numbers were called. There was no answer at either number. Voice mail messages were left. There has been no communication from the Licensee.

6. Mr. Kulis advised the Board that he attempted to reach Ms. McIntosh, at the telephone numbers provided, on the morning of September 16, 2008, without success.

7. Based on the evidence of Ms. Krause, the Board concluded that the Licensee had received effective notice of the hearing. The motion was granted and the hearing proceeded ex parte.

Registrar’s Evidence

8. Stephen Hetherington is an AGCO inspector. He attended the Olymp Banquet Hall on July 1, 2008. This was an event operated through the use of the caterer’s endorsement of the licensee, Mackie’s Restaurant Bar & Grill. He was with Inspector Higuera when they arrived at approximately 3:20 a.m. The parking lot was full; it appeared that the event was still continuing. Two security guards were at the front door. As they entered the lobby, which was not licensed, they observed people consuming bottled beer. They then entered the main hall. He estimated that there were approximately 200 people inside. He did not see any security persons inside the hall. They observed dozens of signs of service, including partially full 40 oz. bottles of liquor, such as Grey Goose vodka and Alize liquor, strewn on the floor. They spoke to Michael Doyle in the bar area. He identified himself as the person in charge.

9. They then walked through the premises with Mr. Doyle, pointing out the signs of service that were still present. People were still on the dance floor. The inspector observed a female on the dance floor smoking a marijuana cigarette. He detected that it was marijuana from the smell. She crushed the cigarette under her foot when she saw him watching her.

10. He asked Mr. Doyle to go to the kitchen so that they could speak in a quieter setting. Mr. Doyle stated that he would have staff clear the signs of service immediately. A few minutes later, they saw a male carrying a large tub, collecting bottles and cans. Specifically noted in it were bottles of Smirnoff Ice coolers and Heineken. Before leaving, he advised Mr. Doyle of the infractions noted.

11. Mark Hall, an AGCO inspector, attended at Luna Banquet Hall on July 25, 2008 at 11:44 p.m., for an inspection of the event which was licensed pursuant to the caterer’s endorsement of Mackie’s. At this time, security personnel had established a line, with metal barriers. No one was in line; about five security persons were at the front door.

12. Inside, a DJ was setting up and about four males seemed to be working. No alcohol had been set up for service; bottles of liquor were still in boxes behind the bar. He approached a security person and asked to speak to Jennifer McIntosh. He was told she was probably outside. He then went to the front door and seeing a woman there, asked if she was Jennifer McIntosh. She responded “yes”. He identified himself as an AGCO inspector and they went inside where he asked to see the liquor licence and receipts for the purchase of liquor. The woman said “just a minute” and returned moments later with a male, identified as Errol Brown. Mr. Brown said he was the catering manager at Mackie’s. He produced the liquor licence and receipts for inspection. Mr. Hall left the premises at 11:55 p.m.

13. Mr. Hall did not ask the woman for identification, but later, in conversation with his superior provided a description of the woman and from that it was concluded that the woman he spoke to was, in fact, not Jennifer McIntosh.

14. Detective Sergeant Gary Grinton is a police officer with the Toronto Police Service, currently serving on the homicide squad. He attended at the Luna Banquet Hall on July 26, 2008 as a result of a call to him that two males had been shot inside the premises, one of whom died from his injuries. When he arrived at 2:45 a.m., he made note of approximately 100 bottles of liquor visible throughout the premises. He determined that the event was held pursuant to a caterer’s endorsement and later received a copy of the liquor licence for Mackie’s Restaurant Bar & Grill.

15. On July 29, 2008, he left a message for one of the principals of the licensee to call him. Later that day, he spoke to Errol Brown who said he represented the Licensee and that he was in charge the night of July 25/26^th. In the course of his investigation, he also spoke to Shanelle Osei-Aning who was hosting, with her brother, the party at the Luna Banquet Hall on July 26^th.

16. She and her brother, both of whom own hair salons, were throwing a party for clients. She had met with the caterers in advance of the event and had been told to supply people, with Smart Serve certification, to work the bar.

17. Approximately 15 security persons, from two different companies were working at the event. D/Sgt. Grinton stated that the security was “better than most”. There was a video camera on the door and patrons were searched upon entry. This murder investigation is ongoing.

18. Michael Burns has been a Detective Constable with the Ontario Provincial Police (“OPP”), for almost 30 years, and is seconded to the AGCO. With A/Sgt. Sonya Siebert, he interviewed Jennifer McIntosh on July 31, 2008 at the licensed premises. That interview was handwritten in a question and answer format and was signed by Ms. McIntosh, in his presence (Exhibit 2).

19. D/C Burns, in his evidence, reviewed the contents of the interview report. Ms. McIntosh indicated that she and her mother jointly own the licensed premises as a 50/50 partnership. In terms of the day to day operation of the premises, she, her mother, her daughter and Errol Brown are involved. The only full-time paid employee is her daughter. Others are hired as needed. Errol is not an employee; he simply helps a lot.

20. In her interview, Ms. McIntosh stated she has used the caterer’s endorsement ten times in the approximately two years they have been in business. Either she or Errol would do the negotiations for the catered event. Errol did all of the negotiations for the event on July 26^th, though she did sign the catering information sheet (Exhibit 3), filled out by him.

21. Errol purchased and paid for the liquor for the event (Exhibit 4), under her liquor licence. She never met the people holding the event, nor did she discuss prices, security, including paid duty officers, staffing or catering supplies with them. Errol was in charge of the event. Neither she, her mother nor her daughter attended the event. She has not attended any of the ten catered events.

22. There was no written contract between Ms. McIntosh and the sponsors of the event; rather, it was a verbal contract. She was paid $1200.00, in cash by Errol. Ms. McIntosh stated in the interview that another catered event was scheduled for the following Saturday. Errol was doing all the arrangements for that event.

23. Finally, Ms. McIntosh, in her interview, stated that she did know that someone has to be at the event to provide food when operating with a caterer’s endorsement under the LLA, but knew nothing more about what was required.

Reasons and Analysis

24. The Registrar is seeking a revocation of the licence. The interim suspension was ordered by the Registrar on August 1, 2008 and that interim suspension has continued by various Orders of the Board.

25. Regarding the first date in issue, July 1, 2008, the evidence from Inspector Hetherington was clear and credible. He and Inspector Higuera arrived at the Olymp Banquet Hall at 3:20 a.m. The event was catered through the liquor licence of Mackie’s. Despite the late hour, signs of service of alcohol had not been cleared. Many bottles of liquor were observed throughout the premises. A female was observed smoking marijuana on the dance floor and only put it out when she observed she was being watched by the inspector. Michael Doyle, who identified himself as the person in charge, when told of infractions responded by having someone collect bottles and cans of liquor strewn throughout the premises, effectively acknowledging non-compliance had occurred.

26. The Board accepts the evidence of Inspector Hetherington. It was given in a compelling and straightforward manner. Given the non-attendance by the Licensee or a representative, there is no evidence to contradict it. The Board, therefore, based on the evidence before it, FINDS violations of section 29 and subsection 45(2) of the O.Reg.

27. The incident that took place on July 26, 2008, at another catered event, this time at the Luna Banquet Hall, is very troubling. Shots were fired within the hall, killing one person and injuring a second, all prior to 2:45 a.m. Absent evidence that this violent conduct occurred despite all reasonable efforts by the Licensee, the Board FINDS that a violation of subsection 45(1) of the O.Reg occurred.

28. In the course of his investigation, D/Sgt. Grinton spoke to Errol Brown who told him that he was in charge of the catered event that night. Through the evidence of D/C Burns, the statement of one of the principals of the licensee, Jennifer McIntosh, was reviewed. In that statement, Ms. McIntosh was clear and unequivocal. She did not attend any of the ten events held under the caterer’s endorsement of her liquor licence, nor did any employee. Mr. Brown negotiated the terms of that event and was, on the evidence of Inspector Hall, the person in charge. Yet he was not an employee of the Licensee. On July 1^st, Mr. Doyle identified himself as the person in charge. He was not an employee.

29. From the evidence before it, the Board concludes that the extent of the Licensee’s involvement in the catered events was the receipt of money for use of its endorsement. With someone else operating the events, specifically Mr. Brown, Ms. McIntosh offers no oversight or direction as is required of a licensee. She had no knowledge of who worked at the events, and therefore no knowledge of whether they had the necessary training. The Board therefore, on the evidence, FINDS a violation of subsections 15(1), 60(2), 64(1) and 64(2) of the O.Reg.

30. The Registrar also seeks a finding of a violation of subsection 45(1) of the LLA, as alleged in the NOP that the licence holder obstructed an inspection. On the evidence, it is clear that Jennifer McIntosh was not in attendance on July 25^th. An unidentified female apparently claimed she was Ms. McIntosh which Inspector Hall accepted. While that claim was untrue, there is no evidence to suggest that Ms. McIntosh, who openly admitted that she never attended catered events, or Mr. Brown, was aware of, or privy to, that subterfuge. Further, what Inspector Hall was requesting that evening from the female, who immediately sought out Mr. Brown, was a copy of the liquor licence and the liquor receipts. Those were provided without hesitation. Inspector Hall asked for nothing more. The Board therefore declines to find a violation of subsection 45(1) of the LLA.

31. Finally, regarding the allegation of clause 6(2)(d) of the LLA, Mr. Kulis points to the Licensee’s general lack of regard for the rules and responsibilities placed upon her by the LLA and its regulations, from which, in some part, the tragic events of July 26^th flowed. That was a widely advertised event (Exhibit 5) which the Licensee had no involvement beyond essentially, selling the use of her caterer’s endorsement.

32. From Ms. McIntosh’s total abdication of her responsibilities and significantly, by virtue of her complete lack of knowledge of those responsibilities, over the past two years in the use of the caterer’s endorsement, there are reasonable grounds to believe that the Licensee will not carry on the business in accordance with the law and with the requisite honesty and integrity. This latter conclusion is only strengthened by the findings of the numerous violations enumerated above.

Conclusion

33. Having reached such a conclusion regarding clause 6(2)(d) and in view of the other violations of the LLA and the O.Reg noted above, the Board hereby ORDERS the revocation of liquor licence number 203380 issued to Mackie’s Restaurant Bar & Grill Inc. operating as MACKIE’S RESTAURANT BAR & GRILL, 18 Queen Street East, Brampton, Ontario, L6V 1A2.

DATED AT TORONTO THIS 14^th DAY OF OCTOBER, 2008.

PATRICIA MCQUAID, VICE-CHAIR JOAN LOUGHEED, BOARD MEMBER

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