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-
Saliha Mohammed Sami Ammeyu operating or intending to operate as Ethiopia Restaurant / Kilimanjaro Restaurant
Applicant
decision
Panel: Jacqueline Castel, Board Member Allan Higdon, Board Member
Decision Date: April 23, 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 ) Phillip Morris, Representative
Allegations
1. The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued Notice of Proposal number 16918 dated December 24, 2008 (the “NOP”) and Supplementary Notice of Proposal number 16977 dated January 16, 2009 (the “SNOP”) to refuse to transfer liquor licence number 200888 held by Mulumebet Mimi Admassu operating as ETHIOPIA RESTAURANT to Saliha Mohammed Sami Ammeyu (the “Applicant”) operating or intending to operate as KILIMANJARO RESTAURANT, 1241 Bloor Street West, Toronto, Ontario, M6H 1N6 (the “establishment”), on the basis that the Applicant would be disentitled to a licence under clauses 6(2)(d) and 6(2)(f) of the Liquor Licence Act (“LLA”). The NOP and SNOP also alleges violations of subsections 5(1), 45(1) and 45(2) of the LLA and section 29 and subsections 25(1) and 34(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the LLA. A hearing of the application was held on March 2, 2009 in the City of Toronto.
Decision
2. After considering all the evidence and submissions, the Board FINDS that during the period when the Applicant operated under an authorization to contract out, it contravened subsection 45(1) of the LLA, and section 29 and subsections 25(1) and 34(1) of the O.Reg, and that after the issuance of a Cease and Desist Order, the Applicant contravened subsection 5(1) of the LLA. On this basis, the Board makes a FINDING under clause 6(2)(d) of the LLA, thereby upholding the Registrar’s NOP and SNOP to refuse to transfer licence. The Board APPROVED the Registrar’s request to withdraw the allegations under subsection 45(2) of the LLA and subsection 25(1) of the O.Reg on October 11, 2008 and to withdraw the request for a finding under clause 6(2)(f) of the LLA. Reasons for these findings follow.
Preliminary Matters
3. The Chair of the Panel convened the hearing, due to begin at 9:30 a.m., at 10:08 a.m. to allow the Applicant additional time to appear at the hearing. Neither the Applicant nor its representative appeared.
4. Paula Konstantinidis is the Manager of Hearings at the Alcohol and Gaming Commission of Ontario (“AGCO”). In this capacity she sends out a Notice of Hearing to Licensees or Applicants due to appear before the Board. Ms Konstantinidis appeared as a witness to give evidence on whether the Applicant received proper notice of the hearing.
5. The Applicant had requested a hearing by submitting a Request for Hearing form, signed and dated January 17, 2009.
6. The witness stated her office had received a call on February 24, 2009 from Ms Saliha Mohammed Sami Ammeyu, the principal of the Applicant, requesting that communications be addressed to her at an address on Bleecker Street. A Notice of Hearing was sent to her at this location.
7. The witness stated her office has tried to contact the Applicant through four phone numbers, including the two listed on her Request for Hearing form, and has received no response.
8. No other communication has been received from the Applicant.
9. Registrar's Counsel requested permission to proceed ex parte as no response had been received from the Applicant to the Notice of Hearing and further attempts to reach her had been unsuccessful.
10. The Board AGREED to proceed ex parte as the Applicant or her representative had not appeared at the hearing despite the panel waiting until 10:08 a.m. to begin deliberations, had not responded to the Notice of Hearing or further attempts to reach her, and had presented no account of extenuating circumstances that would explain her absence.
11. Having received permission to proceed ex parte, Registrar's Counsel filed the following documents, which the Board entered as exhibits, numbered as follows:
- Authorization to Contract Out, effective July 23/08, expires March 22/09
- Authorization to Contract Out, effective October 14/08, expiring March 22/09
- Notification of impending NOP’s To Refuse Transfer, dated October 23/08
- Notice of expiry of authorization to contract out, dated December 24/08
- Additional notification of licence expiry, effective December 24/08, dated same day.
Registrar’s Evidence
12. Devin Sookdeo has been an inspector with the AGCO since January 2006. He is familiar with the premises in question as he conducted inspections there in the summer, fall and winter of 2008/9.
13. The inspector first examined the premises on August 24, 2008. He arrived at 3:00 a.m., accompanied by Inspector Ryan Baird.
14. The witness looked in the window and front door and saw patrons sitting at a table drinking from cups. Upon entry, the witness observed males drinking from plastic cups containing an amber liquid with foam on top.
15. The witness also observed a male leave the kitchen carrying a glass of alcohol. He smelled the glass. It had a strong smell of alcohol and was cold to the touch. The male said it was a rye and ginger ale. The male had exited with the glass from the kitchen, an unlicensed area.
16. The inspector spoke to the person in charge, Sami Ammeyu, and presented his identification. She said last call had taken place at 2:30 a.m. The inspector told her beverage alcohol cannot be served after 2:00 a.m., with all signs of sale and service to be removed by 2:45 a.m.
17. The witness advised the Applicant that signs of sale and service were still evident although it was 3:00 a.m. He also told her a staff member had been consuming alcohol in the kitchen, an unlicensed area.
18. The Inspector advised the Applicant the infractions would be reported to a supervisor and a decision would be made whether to proceed with disciplinary action.
19. The witness left the premises at 3:07 a.m.
20. The witness arranged a meeting between the Applicant and AGCO officials on October 1, 2008 at the AGCO offices in order to ensure the Applicant understood the LLA and her responsibilities under it as a prospective Licensee. A wide variety of possible infractions were reviewed and discussed.
21. Inspector Sookdeo conducted another inspection of the premises on October 11, 2008 arriving at 3:11 a.m. with Inspector Baird.
22. The inspector saw through the windows several male patrons with white plastic cups and beer bottles.
23. The inspectors knocked on the front door and windows and pressed their identification badges on the windows. The witness heard a woman shouting in an unknown language and saw the patrons putting the cups and bottles away, thereby removing signs of service.
24. The front door remained locked and the inspectors were finally let into the premises at 3:16 a.m., five minutes after their arrival.
25. The witness estimated there were approximately 25 to 30 patrons in the establishment.
26. The witness advised the Applicant of the hour (3:18 a.m.) and stated all signs of service should have been cleared by 2:45 a.m.
27. The witness also told the Applicant that inspectors must be let in immediately when they conduct an inspection.
28. The inspector advised the Applicant of the infractions and said a report would be made to his superiors. He left the premises at 3:29 a.m.
29. The witness next inspected the premises on January 10, 2009 at 12:15 a.m., accompanied by Inspector Baird.
30. The witness went in the front door and observed a man sitting at the bar with a Heineken beer in the company of two women, one of them the Licensee. There were also two Corona beer bottles sitting on a table.
31. The inspector spoke to the Applicant and stated a Cease and Desist Order, dated December 24, 2008, had been issued for the premises (Exhibit #4). This required her to stop selling or serving liquor immediately. The Applicant claimed she had never received such a letter.
32. The inspector advised the Applicant that she must stop selling or serving alcohol immediately. He left the premises at 12:25 a.m.
33. Ryan Baird has been an inspector with the AGCO for five years.
34. The Inspector stated on August 24, 2008 he visited the premises with Inspector Sookdeo at approximately 3:00 a.m.
35. Inside the premises he observed people at a table with two full plastic cups of what appeared to be beer. The liquid was amber with foam on top.
36. At another table, males were consuming a beer-like substance from two clear plastic cups.
37. The witness stated Inspector Sookdeo advised him a male in the unlicensed kitchen had a glass of alcohol.
38. The witness spoke to the Applicant about the infractions and departed the premises at 3:07 a.m.
39. On October 11, 2008 the witness again conducted an inspection of the premises accompanied by Inspector Sookdeo.
40. The witness pulled on the front door but it was locked. The lights inside were on.
41. The witness saw several people inside sitting at tables and standing around. A male was outside the entrance smoking.
42. Inspector Baird and his partner knocked on the front door and pressed their identification against the window. They also shone a flashlight into the premises.
43. A female inside walked up to the front door, saw their badges, and turned back to the patrons and yelled in a foreign language. The door remained locked.
44. The witness saw patrons removing beer bottles and cups from the tables. Five minutes later, at 3:16 a.m., the front door was unlocked.
45. Once inside, the witness noted about 25 to 30 patrons were present. The transfer Applicant, Sami Ammeyu, was located in the bar. The witness advised the Applicant of the hour (3:18 a.m.) and stated all signs of service should have been cleared by 2:45 a.m.
46. The witness also told the Applicant that inspectors must be let in immediately when they conduct an inspection. The Inspector advised the Applicant of the infractions and said a report would be made to his superiors.
47. The witness departed from the premises at 3:29 a.m.
48. On January 11, 2009, the witness arrived at the premises accompanied by Inspector Sookdeo at 12:15 a.m.
49. The witness noted the “open” sign was on and they entered by the front door. Inside, they noted a male and female at the bar with a female at a table near the bar. A bottle of Heineken beer was near the male and two bottles of Corona were on a table near the bar.
The witness observed that Inspector Sookdeo spoke to Sami Ammeyu regarding a December 24, 2008 Cease and Desist Order and instructed her to immediately stop the sale and service of liquor as she was not licensed to do so from the date of the Order.
The witness left the premises at 12:25 a.m.
52. Fleurette Gentles has been a Liquor Licence Officer at the AGCO for 10 years. In this capacity she processes applications for liquor licences.
53. The witness testified that on October 1, 2008 she attended a meeting with Dianne Pace (Manager, Liquor Sales Licensing), Inspector Devin Sookdeo, and Ms Sami Ammeyu. The meeting took place at the AGCO headquarters from 2:10 p.m. until 2:35 p.m.
The witness asked Ms Ammeyu for photo identification and she presented her driver’s licence for identity confirmation.
Ms Pace explained the reason for the meeting and expressed her concerns regarding the alleged infractions which had taken place on the Applicant’s premises. The manager also reviewed the events of August 24, 2008.
The witness stated Ms Ammeyu acknowledged she did not have SmartServe certification. Her experience consisted of working as a waitress/manager at another bar, African Paradise.
The witness stated Inspector Sookdeo had a detailed conversation at the meeting with Ms Ammeyu on the rules related to after hours service of alcohol. Ms Ammeyu stated she thought alcohol could be served until 2:30 a.m.
The witness stated the meeting reviewed the five major infractions – intoxication, minors, narcotics, service after hours, and overcrowding. When the meeting concluded, Ms Ammeyu was given a “Responsible Service” information pamphlet.
The witness felt comfortable that Ms Ammeyu understood her obligations and responsibilities under the LLA following the meeting.
Registrar’s Submissions
60. Based on the events of August 24, 2008 Registrar's Counsel requested:
- a finding under section 29 of the O.Reg as the Licensee had failed to clear signs of service and consumption within 45 minutes of the time in which liquor can be sold;
- a finding under subsection 25(1) of the O.Reg as liquor was sold and served outside prescribed hours; and
- a finding under subsection 34(1) of the O.Reg as the applicant permitted a patron to remove liquor from a licensed premises.
61. Based on the events of October 11, 2008 Registrar's Counsel requested:
- a finding under subsection 45(1) of the LLA in that a person carrying out an inspection was obstructed and evidence destroyed;
- a finding under section 29 of the O.Reg as the Licensee failed to clear signs of service and consumption within 45 minutes of the time in which liquor can be sold;
The Registrar wished to withdraw the allegation under subsection 25(1) of the O.Reg and subsection 45(2) of the LLA on October 11, 2008.
62. Based on the events of January 11, 2009 Registrar's Counsel requested:
- a finding under subsection 5(1) of the LLA in that liquor was sold in premises not under the authority of a licence.
63. Registrar's Counsel wished to withdraw the request for a finding under clause 6(2)(f) of the LLA in which it was alleged the Applicant was carrying on activities in contravention of the LLA and its regulations.
64. Counsel stated that the Applicant continued to operate outside the authority of the LLA despite numerous notifications sent to her address.
65. Counsel stated that AGCO staff convened a special meeting with the Applicant to ensure she understood her obligations and responsibilities under the LLA.
66. The Applicant has clearly provided reasonable grounds for the belief that her business would not be carried on in accordance with the law and with integrity and honesty and the Registrar requests that the Board make a finding under clause 6(2)(d) of the LLA, upholding the NOP and SNOP to refuse to transfer the licence.
Analysis and Reasons
67. The Board approved the Registrar’s request to withdraw the allegation under subsection 45(2) of the LLA and subsection 25(1) of the O.Reg on October 11, 2008, as well as the request to withdraw the request for a finding under clause 6(2)(f) of the LLA.
68. The hearing proceeded ex parte as neither the Applicant nor a representative appeared on her behalf at the hearing. As such, no evidence was presented to refute the allegations of the Registrar.
69. The evidence given by witnesses for the Registrar was clear, consistent and credible.
Allegations during the Contracting Out Period:
70. The inspectors testified to being in the establishment on August 24, 2008 at 3:00 a.m. and observing patrons drinking what appeared to be beer from cups outside the hours permitted for service. One patron admitted to Inspector Sookdeo that his glass contained rye and giner ale. According to Inspector Sookdeo, Ms. Sami Ammeyu admitted to him that she had served beverage alcohol after 2:00 a.m., explaining that she believed last call to be at 2:30 a.m. The Board, therefore, concludes that beverages observed by the inspectors in cups were indeed beer.
71. This contravened subsection 25(1) (service after 2:00 a.m.) and section 29 (failure to clear signs of service by 2:45 a.m.) of the O.Reg.
72. An inspector testified he observed a male leaving the unlicensed kitchen with a glass of alcohol. The male said it was a rye and ginger. This contravened subsection 34(1) of O.Reg under the LLA in that the Applicant permitted a patron to remove liquor from the areas of the premises to which the liquor licence applies.
73. The inspectors testified they visited the premises again on October 11, 2008 at 3:11 a.m. The door was locked but they observed people inside the establishment. They pressed their identification against the window and requested entry.
74. The inspectors were denied entry to the premises for five minutes while they heard a woman shouting in an unknown language and observed signs of beverage alcohol service being cleared.
75. This action by the Licensee contravened subsection 45(1) of the LLA. In keeping the door locked while the premises was still open with patrons in the establishment and removing signs of service before the inspectors were allowed to enter, the Applicant obstructed persons carrying out an inspection and destroyed or concealed information required for the purpose of an inspection. The Applicant also contravened section 29 of the O.Reg in failing to clear signs of service and consumption within 45 minutes of the end of the period during which liquor may be sold or served.
Allegations after Cease and Desist Order
76. A return visit by the inspectors took place on January 11, 2009 at 12:15 a.m.
77. The inspectors testified they encountered patrons on that date, as well as the Applicant, drinking alcohol on the premises despite a Cease and Desist Order dated December 24, 2008 in which she was instructed to stop the sale and service of alcohol, effective immediately.
78. This action contravened subsection 5(1) of the LLA in that liquor was kept for sale and sold in a premises not under the authority of a licence.
Allegation Applicant not Entitled to Liquor Licence under Clause 6(2)(d)
79. In view of the Board, the Applicant has exhibited a blatant disregard for the rules and regulations of the LLA, despite repeated instructions including a meeting at AGCO offices on October 1, 2008 to explain the requirements of the LLA and regulations at which Ms Sami Ammeyu stated she now understood her obligations and responsibilities under the legislation.
80. During the contracting out period there were numerous contraventions, including repeat contraventions of the same type, of the LLA and the O.Reg, as described above. The contraventions were recent, serious and occurred on two separate days. In addition, the Applicant subsequently disregarded a Cease and Desist Order, keeping and serving liquor not under the authority of a licence a contravention, which the Board considers to be very serious.
81. This is not a case of an isolated contravention by an otherwise compliant Applicant. There is a clear pattern of non-compliance with the liquor laws over several dates with no evidence of improvement or rehabilitation.
82. Based on the recent, serious and multiple contraventions during the contracting out period and after the Cease and Desist Order, the Board FINDS, pursuant to clause 6(2)(d) of the LLA, that the past conduct of the Applicant affords reasonable grounds for belief that the Applicant would not conduct her business in accordance with the law and with integrity and honesty.
Conclusion
83. In light of the finding under clause 6(2)(d) of the LLA, the Board, therefore, UPHOLDS NOP 16918 AND SNOP 16977 REFUSING to transfer liquor licence number 200888 held by Mulumebet Mimi Admassu operating as ETHIOPIA RESTAURANT to Saliha Mohammed Sami Ammeyu operating or intending to operate as KILIMANJARO RESTAURANT, 1241 Bloor Street West, Toronto, Ontario, M6H 1N6.
DATED AT TORONTO THIS DAY OF , 2009.
JACQUELINE CASTEL, BOARD MEMBER ALLAN HIGDON, BOARD MEMBER