Registrar, Alcohol and Gaming Commission of Ontario v. Pizza Mom Pizza Inc., 2009 CanLII 47540

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

BETWEEN:

Registrar, Alcohol and Gaming Commission of Ontario (Registrar)

-and-

Pizza Mom Pizza Inc. O/A Pizza Mom Pizza (Licensee)

DECISION ON FINDINGS

Panel: Patricia McQuaid, Vice-Chair Jacqueline Castel, Board Member

Decision Date: June 24, 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: Joyce Taylor, Representative Pizza Mom Pizza Inc., Licensee: Richard Elbirt, Representative

Authorities Phoenix (Re), [2006] O.A.G.C.D. No. 582 Fire Protection and Prevention Act, 1997, S.O. 1997, c. 4 O.Reg 213/07 (the Fire Code) made under the Fire Protection and Prevention Act, 1997 Health Protection and Promotion Act, R.S.O. 1990, c. H. 7 O.Reg 562/90 made under the Health Protection and Promotion Act

Allegations

1A hearing into a Notice of Proposal number 17127 (“NOP”) dated March 18, 2009 to suspend liquor licence number 813075 (the “Licence”) issued to Pizza Mom Pizza Inc. (the “Licensee”) operating as PIZZA MOM PIZZA, 631 Kennedy Road, Scarborough, Ontario, M1K 2B2 (the “premises” or “establishment”) on the basis of alleged violations of paragraphs 50(c) and 50(d), subsection 33(1) and section 53 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on June 1, 2009 in the City of Toronto.

Decision

2The Board FINDS that the Licensee contravened subsection 33(1) and paragraphs 50(c) and (d) of the O.Reg. The Board DISMISSES the allegation under section 53 of the O.Reg. Reasons follow.

Registrar’s Evidence

3Detective Constable (“D.C.”) Sean McCutcheon has been a member of the Toronto Police Services for 12 years. He is currently assigned to 41 Division and conducts most of the liquor enforcement for the Division. He attended the establishment at approximately 5:00 p.m. on November 25, 2008 with D.C. David Ouellette to conduct a routine inspection. The owner of the establishment, Mr. Thanendran Balasubramaniam, was present during this inspection.

4D.C. McCutcheon observed that the fire exit light by the kitchen was turned off. The rear fire exit door, the only fire exit for the premises, was locked with two side bolts, and there was also a bungee cord holding the door closed. In addition, there were two boxes on the floor (knee height), smashed glass, and a mop and bucket in front of the door. It would have been very difficult to exit the premises in the event of a fire, especially with smoke which is typical of kitchen fires.

5D.C. McCutcheon subsequently went to the basement of the establishment, an area not covered by the liquor licence. He observed eight tables, 35 chairs at these tables, a dart board, a television set, a working stereo and party streamers hanging from the ceiling. There was also a bar, approximately 10 feet in length, with a working mini fridge and microwave.

6In the bar area, he found an empty 28-pack of Molson Canadian. 28-packs cannot be purchased on licence. On a prior occasion he told Mr. Balasubramaniam not to purchase or have 28-packs anywhere in the premises. He did not ask for a receipt for the 28-pack, since he knows it cannot be purchased on-licence.

7He also observed several cigarette butts and one empty bottle of Molson Canadian on the floor of the basement. There was a 30 foot black tarp, sectioning off the area of the basement used for storage.

8D.C. McCutcheon then went back upstairs to the kitchen. On opening the stand up freezer, he found freezer burnt and green food. On the kitchen counter, he observed a cucumber, tomato, onion and carrots, all of which were rotting. He also observed a dead fly in a pan of oil on the stove. He found three containers of sauces on the counter beside the stove which were warm to the touch. The labels on two of these containers said “refrigerate after opening”. There were three cans of gasoline in the kitchen: one was in an unplugged gas cooler with dry food; another was under the sink; and the third was beside the deep fryer.

9The temperature in the kitchen was about 30 degrees centigrade.

10He also found a set of poker chips in the cooler and what appeared to be a betting sheet on the middle of the counter.

11D.C. Ouellette drew his attention to papers inside the pizza oven. He also counted 12 aerosol cans, on the heat grate of the pizza oven, which was warm to the touch.

12He seized 28 bottles of Molson Canadian from the cooler on the main floor, the poker chips and the betting sheet.

13Charges were laid against Mr. Balasubramaniam under the LLA.

14He did not recall whether the Licensee had a liquor menu.

15On cross-examination, D.C. McCutcheon admitted he did not take any photographs of the fire exit.

16He indicated that the front door of the premises was open when he arrived.

17There were no customers downstairs when he was there.

18Mr. Balasubramaniam told him on a prior occasion that the entire basement was being used for storage. However, it appeared as though only a small area was being used for storage.

19D.C. McCutcheon did not know what kind of food was in the freezer.

20He has received no training as a food inspector.

21There was not a thermometer in the room which indicated the temperature. D.C. McCutcheon was guessing that the temperature felt to be about thirty degrees centigrade.

22Regarding the three containers of sauces, D.C. McCutcheon said that one contained BBQ sauce and was about two-thirds full. He remembers the other two containers having sauce in them, but he does not recall the type of sauce or how much.

23He did not observe an appliance in the kitchen which would take straight gasoline.

24The 28 bottles of Molson Canadian he seized from the cooler were all full. He acknowledged that there is no way of knowing for certain that they came from the 28-pack found in the basement.

25In response to questions from the Panel, he indicated that he and his partner were in the establishment for approximately half an hour and there were two or three patrons in the premises.

26D.C. McCutcheon explained that one end of the bungee cord was tied around the door knob and the other end was attached to something in the kitchen.

27He does not normally inform the City of violations under the Health Protection and Promotion Act. It is his practice to tell the Licensee to clean up the place and to return a day later to ensure that the Licensee has done so.

28Mr. Balasubramaniam was with him the entire time he conducted the inspection and D.C. McCutcheon informed him of all of the violations. Mr. Balasubramaniam told him that he stores paper in the pizza oven because he does not use the oven to make pizza; instead, he buys pizza from another establishment. His explanation for the set-up of the basement, which he previously said was used entirely for storage, was that he held a birthday party there. He did not offer any explanation for the other infractions.

29D.C. David Ouellette is a member of the Toronto Police Services, 41 Division. He attended the establishment on November 25, 2008 with D.C. McCutcheon for the purpose of conducting a random liquor inspection. They met with the owner, Mr. Balasubramaniam, when they arrived.

30D.C. Ouellette immediately noticed that the kitchen was very unclean. There was rotting food. His partner observed a dead fly in oil in a frying pan. He observed two cans of gas near a fryer. There was another can of gas in a cooler which contained food. Food in the freezer was freezer burned. There were also containers with rice covered in mold.

31The fire exit door in the kitchen was bolted with two side bolts. There was also a bungee cord holding the door closed, and access to the door was obstructed by boxes, a mop and a pail. In the event of a fire, it would be very difficult to exit the premises.

32He then went down to the basement, which was set up like a separate club. In the back area, there was a bar. He observed an empty 28-pack of Molson Canadian, a dart board, a television and a stereo. At the far back of the room, there was a tarp, sectioning off the area being used for storage.

33He took the empty 28-pack and went back upstairs. In the kitchen upstairs, he seized 28 bottles of Molson Canadian beer from the cooler. He believed this beer came from the 28-pack and, therefore, was purchased off licence. He asked Mr. Balasubramaniam for the receipt to show that the Molson Canadian in the fridge was purchased on licence. No receipt was produced at the time of the inspection. He told Mr. Balasubramaniam that the beer would be held for 30 days and then destroyed unless a receipt was produced demonstrating it had been purchased on-licence. No receipt was ever produced.

34The establishment had a bristle board menu for alcoholic beverages which did not conform to what was available for sale. He did not make a note of the actual discrepancies.

35On cross-examination, he admitted that he has no training as a food inspector.

36He did not observe any food being prepared in the establishment. He indicated that the Licensee does not prepare pizza at the establishment, despite the name of the establishment. Rather, it orders pizza from other establishments.

37In response to a question from the Panel, he indicated that he observed a one-page folded food menu which was not consistent with what was offered for sale at the establishment.

Licensee’s Evidence

38The Licensee did not call any evidence.

Registrar’s Submissions

39Ms Taylor submitted that a violation of subsection 33(1) of the O.Reg was proven on a balance of probabilities. The officers found an empty 28-pack of Molson Canadian in the basement, an area described in the past as part of the Licensee’s storage area. The Licensee provided no explanation for having a 28-pack which cannot be purchased on licence. The officers seized 28 bottles of Molson Canadian from the cooler in the kitchen, and D.C. Ouellette explained to Mr. Balasubramaniam that he could make an application to have the beer returned within 30 days by providing a receipt for the beer, demonstrating that it was purchased on-licence. Licensees are required to keep receipts for at least a year. No receipt was ever supplied.

40With reference to paragraph 50(c) of the O.Reg, Ms Taylor referred to the Board’s decision in The Phoenix. Specifically, she drew the Board’s attention to paragraph 106 of the decision which quotes paragraph 2.7.2.1(2)(b) of Ontario Regulation 388/97 or the Ontario Fire Code (the “OFC”), prescribed under the Fire Protection and Prevention Act (the “FPPA”), as follows:

“Approved hardware designed to release the latch and allow the door to open in the direction of exit travel when a force of not more than 90 N is applied to the hardware is required on every exit door from a floor area containing a Group “A” occupancy having an occupant load of more than 100 persons.”

Ms Taylor submitted that this paragraph of the OFC would apply to the Licensee and means that fire exit doors must have a crash bar. In The Phoenix case, the door had a thumb-lock, which was found not to comply with paragraph 2.7.2.1(2)(b). In the present case, bolts were engaged at the time of the inspection and the door was also tied shut with a bungee cord. In addition, the doorway was obstructed by boxes, a mop and a pail. Based on this evidence, Ms Taylor submitted, the Licensee clearly failed to comply with the OFC.

41With reference to paragraph 50(d) of the O.Reg, Ms Taylor provided the Board with a copy of Ontario Regulation 562/90 (“O.Reg. 562/90”), prescribed under the Health Protection and Promotion Act (the “HPPA”). She drew the Board’s attention to the definition of “hazardous food” and submitted that the Licensee contravened section 26, subsection 57(1) and paragraphs 59(a) and 63(a) of O.Reg. 562/90.

42Specifically, the warm, open jars of sauce on the counter constitute a contravention of the requirement to protect food from contamination and adulteration under section 26 of O.Reg. 562/90. The premises was not in a sanitary condition, a violation of subsection 57(1) of O.Reg. 562/90, which requires that garbage be removed as often as necessary to maintain the premise in a sanitary condition. Further, the premises were not swept and cleaned in such a manner as to prevent contamination of food, a violation of paragraph 59(a) of O.Reg. 562/90. Finally, keeping gas (a toxic and poisonous substance) in the same container as dry food constitutes a violation of paragraph 63(a), which provides that toxic and poisonous substances required for maintenance of sanitary conditions must be kept in a compartment separate from food so as to preclude contamination.

43Ms Taylor clarified that notwithstanding the wording of the NOP, the Registrar is only alleging that the Licensee contravened paragraphs 53(c) and (d) of the O.Reg. She also drew the Board’s attention to an error in the NOP. Specifically, the NOP indicates that paragraph 53(d) requires posting or making available, among other things, food prices, when in fact there is no requirement to post or make available food prices under paragraph 53(d). With reference to paragraphs 53(c) and (d) of the O.Reg, Ms Taylor indicated that the list of alcoholic beverages and prices did not conform to what was available for sale in the establishment. The folded food menu also did not conform to what was in the establishment. Ms Taylor took the position that non-alcoholic beverages includes food for the purpose of the O.Reg.

Licensee’s Submissions

44Both officers testified they are not qualified food inspectors. They should have some qualifications before alleging violations of the HPPA. Even if a lay person could testify to the state of the vegetables, there was no evidence that the cucumber, tomato, onions and carrots were intended for consumption. Similarly, there was no evidence that the jars of sauce were being used or intended for use. Food was not being prepared at the establishment. It was being brought to the establishment from outside. The officers were only guessing at the temperature in the kitchen since there was no thermometer.

45There was no evidence regarding when or how often the garbage was being removed. If the mess that the officers observed at 5:00 p.m. was there three hours earlier, then it could be said that the garbage was not being cleared as appropriate, but there was no evidence of same.

46The issue of the prices of liquor and food being posted was not at all clear. The officers did not even say what was on the folded sheet.

47There was no evidence regarding what constitutes 90 N, referred to in the section of the OFC cited by Ms Taylor. There was also no evidence regarding what would be required to untie the bungee cord. No effort was made to open the door. As such, there was also no evidence of any difficulty exiting.

48There was no evidence that the beer which was seized came from the 28-pack found in the basement. The beer in the cooler could have come from a 6-, 12- or 24-pack, all of which can be purchased on-licence. There was no evidence about who brought the 28-pack downstairs or the circumstances surrounding same.

49The officers did not see a light in the pizza oven. They just concluded the oven was on because it was warm to the touch.

50There was no clear evidence that the gasoline would contaminate the cans of food or rice.

51Mr. Elbirt submitted that while some of the allegations in this case are serious, they are not well supported by the evidence and should be dismissed.

Registrar’s Reply

52Both officers testified it would be difficult to exit, especially if there was a lot of smoke from a fire. 90 N refers to the force to be applied directly to the crash bar to exit. Between the side bolts, the bungee cord, and the items obstructing access to the door, the door was clearly inoperable and unable to function as a fire exit.

53Section 11 of O.Reg. 562/90 sets out the general requirements for operating and maintaining a food premise, and paragraph 11(a), which is applicable to the Licensee, provides:

“11. Every food premise shall be operated and maintained such that,

(a) The premises are free from every condition that may,

(i) be a health hazard,

(ii) adversely affect the sanitary operation of the premises, or

(iii) adversely affect the wholesomeness of food therein;”

Paragraph 11(a) is not restricted to times when food is being served. It is irrelevant, for the purpose of paragraph 11(a), and the other sections of the regulations referred to previously, whether food is being prepared for customers.

54Regarding the requirement to remove waste “as often as necessary”, since the Licensee choose not to testify, there is no evidence that it was intending to throw out the rotting vegetables or the sauce which should have been refrigerated.

55The reason we do not know for sure that the beer from the cooler came from the 28-pack found in the basement is because the Licensee did not testify. The Licensee was in the best position to tell the Board where the beer came from but chose not to give evidence.

Analysis

Subsection 33(1), O.Reg

56Officers McCutcheon and Ouellette testified that 28-packs of beer cannot be purchased on licence and that they found an empty 28-pack of Molson Canadian in the basement of the establishment. Both officers were candid in acknowledging that they could not tell for sure that the 28 bottles of Molson Canadian in the kitchen cooler came from the 28-pack of Molson Canadian found in the basement. However, the Licensee was given a fair opportunity to provide receipts for the Molson Canadian in the cooler and failed to do so. Given that the Licensee did not provide receipts for the beer in the cooler (substantiating that it had been purchased on-licence) or a credible explanation for the 28-pack in the basement, the Board believes, on a balance of probabilities, that at least some of the beer seized from the cooler came from the 28-pack.

57As such, the Board FINDS that the Licensee contravened subsection 33(1) of the O.Reg, by permitting beer purchased off-license to be brought onto an area of the establishment used in connection with the sale and service of liquor, namely the kitchen where the cooler was located.

Paragraph 50(c), O.Reg

58Based on the evidence of Officers McCutcheon and Ouellette, the Board is satisfied that there were a number of OFC contraventions at the establishment.

59Access to the rear fire exit door was obstructed by boxes, broken glass, a mop and a pail, a contravention of paragraph 2.7.1.7(1) of the OFC which provides that access to exits must be maintained free of obstructions.

60Further, although the Registrar’s representative does not appear to have referenced the correct paragraph of the OFC (i.e., paragraph 2.7.2.1(2)(b) of the former O.Reg 388/97 referred to in the Phoenix decision, as well as corresponding paragraph 2.7.2.1(2)(b) of the current O. Reg 213/07, would only apply to a premises with an occupant load over 100, which would exceed occupant load of the establishment), paragraph 2.7.2.1(1) would apply to the establishment and provides:

“Every exit door shall be designed and installed so that, when the latch is released, the door will open in the direction of exit travel under a force of not more than 90 N, applied at the knob or other latch releasing device.”

The only distinction between the aforementioned paragraph of the OFC and the one relied upon by the Registrar’s representative is that for premises with an occupant load of more than 100, the hardware required to release the latch must be approved. A crash bar is a requirement for premises with an occupant load under 100. Therefore, the two side bolts locking the exit door of the establishment, as well as the bungee cord holding the door closed, would contravene paragraph 2.7.2.1(1) of the OFC.

61The fact that the officers did not attempt to exit from the door to determine whether there would be any difficulty exiting or, more accurately, the level of difficulty, is irrelevant. The OFC is clear that access to exits cannot be obstructed and that bolt locks are prohibited. In a real fire situation, where smoke would also restrict visibility, the absence of a crash bar and the other obstructions at the exit would preclude the quick, unimpeded egress from the establishment that the OFC contemplates, creating a serious safety hazard.

62Failure to have the fire exit light turned on is also a violation of paragraph 2.7.1.7(2) of the OFC, which requires that “lighting provided for illumination in exits and access to exits, including corridors used by the public, shall be maintained.”

63In failing to comply with the above mentioned provisions of the OFC, prescribed under the FPPA, the Board FINDS that the Licensee contravened paragraph 50(c) of the O.Reg.

Paragraph 50(d), O.Reg

64Based on the observations of Officers McCutcheon and Ouellette, the Board is satisfied that the establishment did not comply with paragraph 11(a) of O.Reg. 562/90 (cited at paragraph 53 above), which sets out the general requirements for operating and maintaining a food premise.

65Specifically, the following things observed by the officers contravene paragraph 11(a), by creating conditions which may be a health hazard, which may adversely affect the sanitary operation of the premises, or which may adversely affect the wholesomeness of the food therein: cucumber, tomato, onion and carrots rotting on the kitchen counter; dead fly in a pan of oil on the stove; containers of sauces on the stove which were warm to the touch, two of which containers had labels stating “refrigerate after opening”; food in the freezer which was freezer burned or had turned green; and a can of gasoline in an unplugged cooler with dry food.

66The Board agrees with Ms Taylor that for the purpose of paragraph 11(a) it is not relevant whether the food or sauces in question were intended for consumption. The paragraph applies to the operation and maintenance of all food premises. A “food premise” is defined in subsection 1(1) of the HPPA as:

“... a premises where food or milk is manufactured, processed, prepared, stored, handled, displayed, distributed, transported, sold or offered for sale, but does not include a private residence;”

While there was some evidence that food was not prepared for customers in the establishment, the definition of “food premise” is broadly worded and does not stipulate that the food being prepared or handled must be intended for consumption by the patrons of the establishment or anyone else. Based on the observations of the officers, food was being “stored” and “handled” at the establishment. Further, given the existence of a food menu, the Board infers that food was also being “sold” or “offered for sale” at the establishment, the offering of light meals also being a requirement of holding a liquor licence. As well, the premises are clearly a commercial premises and not a private residence. Therefore, the establishment would constitute a “food premise” for the purpose of the HPPA and paragraph 11(a) of O.Reg. 562/90 would apply.

67The Board does not agree with the Licensee’s representative that specific training as a health inspector is required to detect such blatant violations of the general prohibitions of O.Reg. 562/90.

68Given that the Board has found that the Licensee did not comply with the general requirements for operating and maintaining a food premise, it is not necessary for the Board to consider the other alleged areas of non-compliance with O.Reg. 562/90 raised by Ms Taylor in submissions. In failing to comply with the requirements of paragraph 11(a) of O.Reg. 562/90, prescribed under the HPPA, the Board FINDS the Licensee contravened paragraph 50(d) of the O.Reg.

Paragraphs 53(c) and (d), O.Reg

69The officers gave only limited and vague evidence respecting paragraphs 53(c) and (d) of the O.Reg. D.C. McCutcheon testified that he did not recall whether the Licensee had a liquor menu and was not asked to comment about the existence of a list of the varieties of non-alcoholic beverages with corresponding prices. D.C. Ouellette testified that the establishment had a bristle board menu for alcoholic beverages, which did not conform to what was available for sale. However, he could not recall the actual discrepancies. He also testified that there was a one page folded food menu which did not conform to what was available in the establishment. The Board does not accept Ms Taylor’s submission that non-alcoholic beverages include food for the purpose of section 53 of the O.Reg. There was no evidence that the officers ever asked the Licensee to make available or produce a list showing the varieties of non-alcoholic beverages and corresponding prices.

70Given the lack of specificity of the evidence relating to the price list for alcoholic beverages, and the lack of evidence at all respecting the list of the varieties of non-alcoholic beverages and corresponding prices, the Board is not satisfied that the Registrar has established, on a balance of probabilities, that the Licensee failed to comply with paragraphs 53(c) and (d) of the O.Reg. Accordingly, the Board DISMISSES the allegations under paragraphs 53(c) and (d) of the O.Reg.

Conclusion

71Therefore, the Board FINDS that the Licensee contravened subsection 33(1) and paragraphs 50(c) and (d) of the O.Reg. The Board DISMISSES the allegation under paragraphs 53(c) and (d) of the O.Reg.

72The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file 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 a 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 24th DAY OF June, 2009