Registrar, Alcohol and Gaming Commission of Ontario v. La Voyager Inc., 2009 CanLII 47531

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-

La Voyager Inc. operating as Le Voyageur Inn Applicant

DECISION

Panel: David C. Gavsie, Chair AGCO Brian J. Ford, Board Member

Decision Date: June 19, 2009 Hearing Location: North Bay, 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 La Voyager Inc., Applicant ) Jamie Latendresse, Representative

The Application

1The Registrar of the Alcohol and Gaming Commission of Ontario (“AGCO”) issued a Notice of Proposal number 16640 dated September 23, 2008 (“NOP”) and a Supplementary NOP number 17126 dated March 17, 2009 (“SNOP”) to review an application for a liquor licence and to refuse to issue a licence for additional licensed indoor and outdoor areas for capacities of 160 and 50 persons from La Voyager Inc. (the “Applicant”), operating as LE VOYAGEUR INN, 351 Main Street, P.O. Box 1170, Mattawa, Ontario, P0H 1V0 (the “establishment” or “premises”), liquor licence number 92343 (the “Licence”), on the basis that the Commission has received one or more written objections to the application from residents of the municipality. The Proposals also allege further to clauses 6(2)(h), 6(2)(d), 6(2)(f) of the Liquor Licence Act (“LLA”) that there have been violations of subsections 30(2), 30(4) and 41(1) of the LLA and section 43 and subsection 45(1) of the Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA. A hearing of the NOP and SNOP was held on May 22, 2009 in the City of North Bay.

Decision

2At the conclusion of the hearing the Board gave its verbal APPROVAL for the Application subject to conditions. The Board indicated it would issue a written decision and is now doing so.

Preliminary Matters

3Jamie Latendresse is a friend of the Applicant. He appeared on behalf of the Applicant. The Applicant waived the right be represented by a barrister and solicitor or a licensed representative.

Registrar’s Evidence

4Lynn Turcotte is a resident who lives on property on the east side of Le Voyageur Inn on McConnell Street, Mattawa. She advised the Board that the side of her house faces the east side of the Le Voyageur, at a distance of approximately 180 ft. Ms. Turcotte said she does not oppose the increase in capacity sought by the Licensee, but would like to see some conditions attached to the Licence.

5Ms Turcotte asked the Board to consider restricting the hours that music could be played on the patio of the establishment. She stated she would like all music, whether live or canned, to cease at 9:00 p.m., with an exception for “Voyageur” days when the restrictions would not apply.

6Ms Turcotte would also like the Board to consider a condition that all doors to the establishment be kept closed, except for when people are entering or exiting. She stated that she would also like some sound abatement on the east side windows of the establishment.

7Lorne Blais is an AGCO Inspector and has been since July of 1998. He advised the Board that he attended Le Voyageur Inn on July 26, 2008 and also on March 8, 2009 to conduct a routine liquor inspection.

8Inspector Blais stated that on July 26, 2008, he entered the establishment at approximately 0056 hours and observed a large crowd in attendance. He went out onto the patio and conducted identification checks on several patrons. He observed a group of younger looking patrons sitting on a cement block, he approached them and checked their identification. At the time he observed a young female and a male who quickly moved away from the area.

9Inspector Blais stated he later located the young female patron who was speaking to a male staff member. He approached the female and asked for her identification to verify her age. The female patron said to him that she would leave the premises. He again asked for identification and was told that she did not have any on her at the time. At the time Inspector Blais stated the female was drinking from a partially consumed bottle of Coors Light Beer.

10Inspector Blais asked the female how old she was and she informed him that she was 17 years of age. She told the Inspector that she was staying at the hotel and gave her name as K. M. and stated her date of birth was February 15, 1991. She told Inspector Blais that she lived in North Bay and was staying at the hotel during the Voyageur Days celebrations with friends. K. M. advised Inspector Blais that she had not been asked for identification by the hotel staff.

11Inspector Blais advised the manager of the establishment of his observation and informed him to make sure the young woman did not enter the establishment again.

12Inspector Blais advised the Board that on March 8, 2009, he again attended Le Voyageur Inn regarding a complaint of over-service. He conducted observation from the parking lot with Inspector Cartmill from 1:07 a.m. to 1:33 a.m. He noted patrons were walking into the establishment or arriving in taxis.

13At 1:33 a.m. he and Inspector Cartmill entered the establishment and noted there was a line-up to enter the licensed bar in the lobby of the hotel.

14Once inside the licensed area, Inspector Blais stated that he noticed a male patron who was exhibiting signs of intoxication. The male was swaying on his feet and he staggered when he walked. This male patron was going from table to table and when talking to someone at a table he would hold on to the chair for balance.

15The male patron was going from table to table heading for the front entrance and he eventually departed on his own. Inspector Blais stated he observed this male for approximately five minutes. Inspector Blais stated the bartender and the doorman saw this person, but neither took any action.

16Inspector Blais also advised the Board that he noted that the premises seemed very busy so he conducted a soft count using a mechanical counter. He counted a total of 88 patrons and 5 staff for a total of 93 persons in an area that was licensed for 80 people total.

17Inspector Blais stated that as a result of his soft count he informed the manager that he and his partner were going to do an exit count and asked that no one be allowed in or out of the premises.

18Inspector Blais stated that Inspector Cartmill conducted the hard count as patrons were exiting the establishment. Inspector Blais stated Inspector Cartmill informed him that his count was 92 patrons, and did not include staff. Inspector Blais stated that the combined total of staff and patrons was 97 for an area that was licensed for 80 persons.

19Inspector Blais stated that he also observed another male person during the count at the bar who was intoxicated. He was swaying on his feet and when he left the bar area during the count he was staggering. He noted that this person was drinking from a bottle of beer but he did not know the brand.

20During cross-examination Inspector Blais stated he did not see any service of alcohol to either of the patrons who were exhibiting the signs of intoxication. He also stated that he did not speak to either patron.

21Inspector Blais stated under cross-examination that the young female told him that a male who was 19 had purchased the beer for her and that she had been consuming it.

22Inspector Blais stated that he informed the manager on all occasions of the infractions that were noted.

23K. M. was born on February 15, 1991, making her 17 years of age on July 26, 2008. She advised that on July 26, 2008 she had been staying at Le Voyageur Inn during the Voyageur Days celebrations in Mattawa. She told the Board that she had been drinking from a bottle of Coors Light Beer when she was approached by an AGCO Inspector.

24K.M. advised the Board that the beer had been purchased for her by a male friend who was 19. K.M. also stated that she only had one beer.

25K. M stated that she had been stamped by a staff member who did not ask for identification. However, she explained that she had advised the staff member that she was staying at the hotel.

Applicant’s Evidence

26Sudawan Butt is co-owner of the establishment with her husband Mr. Qaisar Butt. Ms Butt advised the Board that she and her husband purchased Le Voyageur Inn in 2007. When they purchased the establishment they did not seek a transfer of the liquor licence, which had a combined capacity of 210, but applied for a new licence with a decreased capacity. In the beginning they did not think they would need the former capacity.

27However, Ms Butt stated that they have since discovered that an increase in capacity would be needed for them to be a profitable business. She advised the Board they were seeking an increase in capacity for the bar area of the hotel from 80 to 160 person and the patio from 40 to 50 persons.

28Ms Butt explained that on the evening that the young woman was found in the establishment a female person had been hired to check identifications and stamp patrons. Ms Butt explained that the young woman who was under age had to go through the patio area because the main doors were closed to control crowds.

29Mr. Latendresse entered six letters of support for the increase in capacity and supporting the Butts as owners. One of the letters was from the Mayor of Mattawa, and another from the Town Clerk. The other three letters were from three nearby residents.

30The Board was also informed with concurrence from Registrar's representative that the increase sought was within the limits approved by the town Fire Chief.

31Under cross-examination Ms. Butt stated that she and her husband bought the premises in 2007 and have spent almost one million dollars on renovations. She stated her husband is normally in charge, however, on the two nights in question he was in Pakistan dealing with his immigration issues.

32Qaisar Butt is co-owner of the establishment and he stated that he was not in the country on the two occasions when AGCO Inspectors conducted their inspection. He stated that his wife was new to the business and was somewhat overwhelmed by it all.

33Mr. Butt advised that he had taken a number of measures to ensure that this did not happen again. He stated that none of the rooms would be rented out to anyone under the age of 19 during Voyageur Days and that he intended to hire six bouncers/security for special occasions when there are a larger than normal number of patrons.

34Mr. Butt also informed the Board that he has installed security cameras at the entrances and inside the establishment at the bar and reception of the hotel.

35Mr. Butt stated on normal days the bar has approximately 50-60 patrons.

36Under cross-examination Mr. Butt reiterated that he would have extra staff on special occasions such as New Years, and Voyageur Days.

37Mr. Butt stated that he was not there when the incidents before the Board occurred, but the issues that lead to some of the infractions have now been cleared up. Mr. Butt also stated that he would not have any music, live or otherwise, on the patio after 9:00 p.m.

38Mr. Butt also stated that he has installed door springs that will keep all exit doors closed except for ingress and egress. He also stated he had all of the windows in the establishment replaced with double glazed windows, which will greatly reduce the noise from inside the establishment. Mr. Butt explained that he has put close to one million dollars in renovations into Le Voyageur.

39Bob Rowlandson is a resident of Mattawa, a former business owner there, and is the current chair of the Mattawa Tourism Coalition Committee.

40Mr. Rowlandson supports the Application.

41He stated he got to know Mr. and Mrs. Butt. He is aware of the large amount of money they have put into the hotel. They have shown people why they should invest in a business in Mattawa and why Mattawa is a place for others to invest.

42Mr. Rowlandson said that in his view, the hotel is a key component to the downtown of Mattawa. The town needs more people like Mr. and Mrs. Butt.

Registrar’s Submissions

43Mr. Kulis initially stated that the Registrar opposed the increase in capacity due to the problems that occurred when there was a smaller capacity at the hotel. He stated that the Registrar had concerns that the management of the establishment might not be able to handle the increased capacity.

44Mr. Kulis stated that the Registrar was not seeking a sanction with respect to the issues that were brought to the attention of the Board.

45Mr. Kulis later, however, stated that he was satisfied that with the return of Mr. Butt and the steps taken to rectify issues that he would leave it to the Board to address the issue of whether or not to grant the increase in capacity sought.

Applicant’s Submissions

46Mr. Latendresse stated that the owners of Le Voyageur had expended a considerable amount of money in renovations and is taking due diligence to address the issues. He also noted that the investment in the business was a sign to others that Mattawa was worth investing in.

47Mr. Latendresse also noted the owners would not allow anyone under the age of 19 into the Inn during Voyageur Days. He stated Mr. Butt was forthright and honest with the Board and asked the Board to grant the increase in capacity they were seeking.

Reasons

48The Board is impressed with the candour and sincerity with the principals of the Licensee who have owned and operated the premises since 2007.

49The Licensee’s Application clearly has the support of the community, including the Mayor of Mattawa and nearby residents.

50Ms Turcotte, the only objector to appear at the hearing clarified that she did not opposed the Application, subject to certain conditions. Her concerns have been addressed by the Licensee and the Board.

51The Board notes that the current Application results partly from the Applicant’s initial application for a liquor licence in 2007 when they applied for a new licence with a lower capacity than that of the previous Licensee. Since then they have made considerable additional investments which has resulted in increased business, which has the general support of the community.

52There is no evidence of prior breaches of the LLA by the Applicant other than what was alleged in the NOP and SNOP, and which, even if established, the Registrar is not seeking any sanction.

53Furthermore, as noted by Registrar’s Counsel, with the return of Mr. Butt, who was temporarily absent during the incidents outlined in the NOP and SNOP, and steps taken to rectify matters, the concerns appear to have been satisfied.

Conclusion

54The Board is satisfied that steps have been taken to rectify the situations that occurred in July of 2008 and March 2009. Rooms would not be rented out to anyone under the age of 19 during Voyageur Days, security cameras have been installed, and Mr. Butt has returned from his temporary absence.

Order

55For the above reasons, the Board APPROVES the Application for additional indoor and outdoor areas for capacities of 160 and 50 persons, respectively, subject to the following conditions:

1. There shall be no music, live, canned or amplified on the patio after 9:00 p.m. except on Voyageur Days when normal hours will apply.
2. Exit doors must be kept closed except for exit and entry purposes.
3. The Licensee will, on Voyageur Days, have six (6) bouncers/security and six (6) wait staff/bartenders on staff during hours of business.

DATED AT TORONTO THIS 19th DAY OF JUNE, 2009.