Registrar, Alcohol and Gaming Commission of Ontario v. Paradise Place Caribbean Restaurant Inc., 2009 CanLII 20277

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-

Paradise Place Caribbean Restaurant Inc. O/A Paradise Place Caribbean Restaurant Inc. (Licensee)

DECISION ON FINDINGS

Panel: Patricia McQuaid, Vice-Chair Guy Maurice, Board Member

Decision Date: March 3, 2009

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 Paradise Place Caribbean Restaurant Inc. ) Wesley Buchner, On behalf of the Corporation

Allegations

1A hearing into Notice of Proposal number 16209 dated April 24, 2008, to suspend liquor licence number 281006 issued to Paradise Place Caribbean Restaurant Inc., (the “Licensee”), operating as PARADISE PLACE CARIBBEAN RESTAURANT INC., 571 Vaughan Road, York, Toronto, Ontario, M6E 2W8, (the “establishment” or the “premises”), on the basis of an alleged violation of subsection 45(2) of the Liquor Licence Act (“LLA”) and section 45.2 and subsections 17(2) and 45(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on December 18, 2008, in the City of Toronto.

Decision

2After considering all the evidence and submissions, the Board FINDS the Licensee violated subsection 45(2) of the LLA and subsections 17(2) and 45(1) of the O.Reg. The Board DECLINES to make a finding of a violation of section 45.2 of the O.Reg. Reasons follow.

Preliminary Matters

3Mr. Buchner requested an adjournment of the hearing as his representative, Mr. Seidu was not available. Mr. Kulis opposed the adjournment request. He stated that in May 2008, Mr. Buchner’s previous representative, Mr. Seidu, was dismissed and Mr. David Rovan was retained on July 4, 2008 (Exhibit #1). The matter was then adjourned on July 10, 2008 peremptory on the Licensee. Mr. Rovan then indicated by letter dated July 24, 2008 (Exhibit #2) that he no longer acted for the Licensee and suggested that a date be set for the hearing. A letter from Kristina Krause, Case Management Coordinator, dated September 29, 2008, to Mr. Buchner and the Registrar’s Representative, confirmed that this matter is peremptory on the Licensee to proceed on December 18, 2008. There was no contact from the Licensee indicating that a request for a further adjournment was being contemplated or that Mr. Seidu was again his representative.

4Mr. Kulis requested a 10 minute recess to contact Mr. David Seidu. Upon his return, Mr. Kulis advised the Board that he was unable to contact Mr. Seidu.

5The Board, in the circumstances, denied the adjournment. Mr. Buchner had been advised that the December 18th date was peremptory which meant that the hearing must proceed. There was no indication between September and December that Mr. Seidu was the Licensee’s representative, from either the Licensee or Mr. Seidu himself.

Registrar’s Evidence

6Mr. Buchner confirmed that he had received the disclosure package from the Registrar’s Representative.

7Jeff Taylor, a police constable with the Toronto Police Services since 1980, is familiar with the establishment. While in uniform, and together with P.C. Sofie Szajkowski, he arrived at the establishment on November 16, 2007 at 6:00 p.m. to conduct a routine LLA premises check. They were unable to locate the owner, Mr. Buchner, but spoke to a person identified as “F.W.,” the cook, who had no SmartServe certificate as required. P.C. Taylor observed three other patrons whom he recognized from their involvement at two other establishments. He asked to see the liquor licence for the establishment, which F.W. produced.

8A female, “S.C.” known from another establishment approached the officer, freely advising that she was now employed as manager of the establishment. P.C. Taylor requested the receipts for the purchase of alcohol. She was unable provide them. He requested that the licence holder, Mr. Buchner, be contacted either by F.W. or S.C. and both were unable to do so, stating that they did not have his phone number.

9While conducting the inspection, a female known as “J.V.” approached the order window between the bar and the kitchen and became rather loud, complaining about the police presence and stating the only reason police were present was because she and her husband, as well as S.C. were there. She continued to complain, interfering with the inspection by not allowing him to speak freely with S.C. and F.W.

10P.C. Taylor requested of both S.C. and F.W. that they caution the patron concerning her disorderly behaviour and both refused to do so, more or less suggesting that he do so himself.

11P.C. Taylor advised S.C. of violations and pending charges. He requested that she advise Mr. Buchner and she refused, telling P.C. Taylor that it was his job, not hers. F.W. kept telling P.C. Taylor that he was the cook and not the manager. S.C. was extremely unhelpful, very rude and did not provide any assistance. As well, a female patron continued to be disorderly, trying to photograph the police with her camera phone and was asked not to do so. S.C. continued to be extremely rude and disorderly, especially to P.C. Szajkowski, and when requested to stop, she continued her obnoxious behaviour.

12P.C. Taylor advised F.W. and S.C. that due to the lack of a reasonable server and proper supervision, the service of alcohol must cease and everyone was to leave the premises.

13While on the scene, a phone call was received from a female identified as Mr. Buchner’s wife, who instructed F.W., who suddenly appeared to have the keys to the premises, to close and lock the premises, which he did at 7:05 p.m.

14Later that evening, the officers returned to the establishment whereupon they spoke with Mr. Buchner, advising him of the incident, the conduct of his staff and that charges would be laid. Mr. Buchner advised that S.C. had been employed as a waitress for a week and that both she and F.W. had his cell phone number and that F.W. had the keys to the premises. Mr. Buchner was cooperative.

15On cross-examination, P.C. Taylor could not recall if he asked S.C. to produce her SmartServe card, however, he recalled her stating that she was the manager and in charge.

Licensee’s Evidence

16Wesley Buchner advised the Board that on November 16, 2007, he left the premises to go to the Beer Store and while there, he received a call from his wife that the bar was closed. His wife told him that police were at the establishment. No one wanted to talk to the police so she told police to close the bar. He proceeded to the premises, found it closed, re-opened it and shortly after that the police showed up. He asked what went wrong and the officers advised accordingly.

17Mr. Buchner apologized to the officers and P.C. Taylor replied that charges would still be laid.

18Mr. Buchner advised that only employees F.W. and S.C. had authority within the restaurant. J.V. and her husband were only customers on the night in question.

19In cross-examination, Mr. Buchner confirmed that he was not at the establishment on the evening of November 16, 2007. He has receipts to verify that he was at the Beer Store when the police attended but they are with his accountant. Neither F.W. nor S.C. are working for him now. They left about six to eight months ago, because of this incident. He also confirmed that J.V. has not returned.

Registrar’s Submissions

20Mr. Kulis submitted that nothing has been presented to refute the evidence of P.C. Taylor, specifically the disorderly conduct of J.V. interfering with the police and further, that of S.C. With no evidence presented to the contrary, the Registrar is seeking a finding of a violation of subsection 45(1) of the O.Reg.

21The Licensee was not present. F.W. failed to come forward with keys and a cell phone number, and neither he nor S.C. assisted with respect to J.V. who was out of control. There appeared to be no plans or policy in place regarding control of disruptive patrons. It appears that J.V. continued to be welcome at the establishment until S.C. left her employment there. Therefore the Registrar is seeking a finding of a violation under section 45.2 of the O.Reg.

22With no evidence to the contrary, it appears that only Mr. Buchner was in control. S.C. was a waitress who had no authority granted to her. Therefore, the Registrar is seeking a finding of a violation of subsection 17(2) of the O.Reg.

23Both employees showed disdain for the inspection by two uniformed police officers. F.W. refused to produce a cell phone number, one that he had. S.C. was rude to the officers and dismissive of their requests. The actions of both were far from that required by the LLA and its regulations, such that the police found it necessary to close the bar. Therefore, the Registrar is seeking findings under subsection 45(2) of the LLA.

24No remedial actions were put in place by Mr. Buchner. Both F.W. and S.C. only left several months after the incident and J.V. was not barred from the premises.

Licensee’s Submissions

25Mr. Buchner submitted that he makes sure that waitresses are SmartServe certified. While it is unfortunate S.C. and F.W. did not conduct themselves appropriately, he should not be held responsible. He did apologize to the officers.

Analysis/Reasons/Findings

26The Board notes that while Mr. Buchner requested an adjournment of the hearing, which was denied, he participated fully, including cross-examining P.C. Taylor, presenting evidence on his own behalf and making submissions.

27The allegations arising from the evening of November 16 stem from Mr. Buchner’s absence, however temporary. Police attended for a routine inspection. The uncontradicted evidence of P.C. Taylor is that S.C. asserted that she was the manager. Both she and F.W. were at best unhelpful and, by P.C. Taylor’s account, rude and disdainful. He asked to see receipts for the purchase of alcohol. Neither S.C. nor F.W. could provide them, nor apparently could they contact Mr. Buchner though they were requested to do so. When J.V. inserted herself, loudly and rudely into the discussion, they did nothing to control her behaviour although P.C. Taylor requested them to do so. The officers, in the face of this lack of cooperation, closed the establishment.

28Mr. Buchner, as the licence holder, is responsible under the LLA and its regulations for the action of his employees, whether or not he delegated managerial authority to them. His evidence is that neither S.C. nor F.W. were more than employees. Though he says he left the premises only briefly, there is no indication that he left anyone to supervise the activities of the establishment, and on that basis, the Board FINDS a violation of subsection 17(2) of the O.Reg.

29Further, based on the evidence of P.C. Taylor, the licence inspection was made difficult by the action, and inactions of the employees who were present. It is incumbent upon a licence holder to ensure that both he and his employees cooperate during inspections. That was clearly not the situation here. The Board therefore FINDS a violation of subsection 45(2) of the LLA.

30Regarding subsection 45(1) of the O.Reg, again, on P.C. Taylor’s evidence, there being nothing before the Board to the contrary, J.V.’s conduct was certainly quarrelsome. Both S.C. and F.W., by their apparent unwillingness to assist the officers by bringing J.V.’s behaviour into check, permitted that conduct. The Board therefore FINDS a violation of subsection 45(1) of the O.Reg.

31With respect to the allegation of a violation of section 45.2 of the O.Reg, a relatively new section of the regulation, the Board notes that while the inspection was made difficult by the conduct of J.V. and the lack of cooperation by S.C. and F.W., the evidence did not, however, suggest that the premises were out of control, nor was there evidence that Mr. Buchner had no plans for maintaining control over a disruptive patron. Mr. Buchner was cooperative and apologetic. There was no evidence before the Board that prior to that evening there was any requirement that J.V. was a person who should not have been permitted in the premises, nor was there any evidence that the officers requested that S.C. or F.W. require J.V. to leave and that they failed to do so. The events were no doubt frustrating for the officers but the Board concludes, in light of the findings made in respect of the previous allegations, that the facts do not warrant a finding of a violation of section 45.2 of the O.Reg.

Conclusion

32For the reasons given, the Board FINDS the Licensee violated subsection 45(2) of the LLA and subsections 17(2) and 45(1) of the O.Reg. The Board DECLINES to make a finding of a violation of section 45.2 of the O.Reg.

33The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file his written submissions within seven (7) days of the date of this decision. The Licensee’s representative shall have seven (7) days to serve and file his written response. Registrar’s Representative may serve and file any reply within three (3) days of receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission at the address on the front page of this decision in accordance with the Board’s Rules of Practice.

DATED AT TORONTO THIS 3rd DAY OF March, 2009