Registrar, Alcohol and Gaming Commission of Ontario v. 1703209 Ontario Limited, 2009 CanLII 20263

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 of Ontario

Registrar

-and-

1703209 Ontario Limited O/A La Cantina Beer & Wine

Licensee

DECISION AND ORDER

Panel: Beryl Ford, Board Member

Decision Date: February 2, 2009

Hearing Location: Niagara Falls, 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 ) Daniel Alakas, Representative

1703209 Ontario Limited, Licensee )

Allegations

1. A hearing into a Notice of Proposal (“NOP”) number 16629 dated September 11, 2008 to revoke ferment on premise licence number 808743 (the “Licence”) issued to 1703209 Ontario Limited (the “Licensee”) operating as LA CANTINA BEER & WINE, 27 Thorold Road, Unit 1, Main Level, Welland, Ontario, L3C 6M2 (the “premises” or “establishment”), on the basis of an alleged violation of subsection 15(4) of Ontario Regulation 58/00 (the “O.Reg) was held on January 19, 2009, in the City of Niagara Falls.

Preliminary Matters

2. Mr. Alakas, Registrar’s representative, informed the Board that neither Patrick Charles Brown, the principal of the corporate licensee, or any party representing the Licensee, was present at the commencement of the hearing.

3. The Licensee signed and submitted a request for a hearing on September 16,2008. Since that time, numerous attempts have been made to contact the Licensee. The telephone line to the business is disconnected and an answering machine at the home number gave a recorded message that they were unavailable.

4. A Notice of Hearing was sent to the Licensee by the Hearings Department on November 4, 2008. The mail was returned to the AGCO by Canada Post on November 10, 2008

5. An affidavit of service dated December 31,2008 is on record.

6. Based on the above information, Mr. Alakas made a motion to have the hearing proceed ex parte given the Licensee’s failure to appear although properly notified. The Board granted the motion.

Registrar’s Evidence

7. Joseph Passmore testified that he is an Inspector with the Alcohol and Gaming Commission of Ontario (“AGCO”), a position he has held since 2002.

8. According to Inspector Passmore, the establishment was suspended from operation for the period of May 20, 2008 until June 19, 2008. Information gathered by Inspector Passmore from the AGCO liquor records system known as AS/400 reported that Inspector Brian Sharpe of the AGCO delivered the suspension placard to the premises in May 2008. Nobody was present at the premises on his arrival, Inspector Sharpe posted the suspension placard on the premises.

9. Inspector Sharpe had also recorded that he had visited the premises on more than one occasion and found it closed.

10. After the suspension had expired on June 19, 2008, Inspector Passmore visited the premises on June 23, July 7, October 23, and finally on December 22, 2008. The business remained closed and the suspension placard, although expired, was still posted on the establishment.

11. The premises were locked; Inspector Passmore looked through the windows on each visit and noted that there were old containers of what appeared to be wine, standing along the wall inside.

12. Inspector Passmore had visited the premises prior to the suspension and had noticed the wine containers in the same location. He also noted that the place was run down and dirty at that time even though it was operating.

13. On Inspector Passmore’s visits following the suspension, he observed through the windows of the closed business that it was ‘filthy dirty’ and run down. There were no lights on and no sign of anyone having been there.

14. There was no indication that the business had been re-opened or operating in any way. It appeared to the Inspector that the Licensee had simply ‘walked away’ from the business from the time of the suspension.

Registrar’s Submissions

15. Mr. Alakas submitted, based on the evidence, the business had stopped operating after the suspension had been served. There was no contact with the Licensee and no indication that the business had re-opened.

16. Inspector Passmore had conducted four visits since the suspension was served and it was obvious to the Inspector that the business was not operating. It was run down, old containers of wine were visible through the windows, and it was dirty and without lighting.

17. Mr. Alakas submitted that the Licensee was not present at the Hearing, no contact could be made with him, he had not responded to the Notice of Hearing and the business had not been operating or re-opened. A licensee is required by law to surrender its licence if the business ceases to operate; and this has yet to be done by the Licensee in question.

18. Therefore the Registrar requested that the Board revoke the Licence immediately in accordance with subsection 15(4) of Ontario Regulation 58/00.

Decision

19. The Board considered the evidence presented by Inspector Passmore and the submission by the Registrar’s representative. It is obvious to the Board that the business is not operating.

20. The premises appear to be dirty, without lighting and unoccupied. Although the Licensee signed a request for a hearing on September 16, 2008 in response to NOP number 16629 to revoke the Licence, the Licensee has made no attempt to contact the AGCO since that date.

21. Numerous visits to the unoccupied premises have been made by an AGCO Inspector, telephone calls have gone unanswered, the business telephone line has been disconnected and mail sent to the establishment has been returned to the AGCO.

22. It is incumbent on the Licensee to surrender the Licence in accordance with subsection 15(4) of Ontario Regulation 58/00 immediately after the business has ceased to operate. This has not been complied with.

Conclusion

23. For the reasons given, the Board FINDS the Licensee violated subsection 15(4) of the O.Reg.

24. Therefore the Board ORDERS that ferment on premise licence number 808743 issued to 1703209 Ontario Limited operating as LA CANTINA BEER & WINE, 27 Thorold Road, Unit 1, Main Level, Welland, Ontario, L3C 6M2, be REVOKED effective IMMEDIATELY.

DATED AT TORONTO THIS 2^nd^ DAY OF FEBRUARY, 2009.

BERYL FORD, BOARD MEMBER