Registrar, Alcohol and Gaming Commission of Ontario v. 1419664 Ontario Inc. O/A Blue Martini, 2009 CanLII 55869

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-

1419664 Ontario Inc. O/A Blue Martini

Licensee

DECISION

Panel: Allan Higdon, Board Member Joan Lougheed, Board Member

Decision Date: August 6, 2009

Hearing Location: Hamilton, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone: (416) 326-0366 Toll Free In Ontario: 1-800-522-2876 Fax: (416) 326-5566 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Richard Kulis, Representative 1419664 Ontario Inc., Licensee ) Robert Plouffe, Representative

1. A hearing into Notice of Proposal (“NOP”) number 17409 dated July 17, 2009 and an Order dated July 17, 2009, to immediately suspend liquor licence number 808161 (the “Licence”) issued to 1419664 Ontario Inc. (the “Licensee”) operating as BLUE MARTINI, 11 Hess Street, Hamilton, Ontario, L8P 3M7, on the basis of alleged violations of clause 6(2)(d) and subsections 45(1) and 45(2) of the Liquor Licence Act (“LLA”) and section 43 and subsection 45(1) of Ontario Revised Regulation 719/90 (“O.Reg”) made pursuant to the LLA, was held on July 27, 2009 in the City of Hamilton.

2. Richard Kulis, Registrar’s Representative, and Robert Plouffe, Licensee’s Representative, submitted an Agreed Statement of Facts and Joint Submission on Disposition (Exhibit #1) which form part of this decision. It was agreed and admitted that:

a. The licensed premises were overcrowded on the following dates in the following manner. The interior premises have a capacity for 27 people and have an exterior capacity of 29 people.

• On May 9, 2009, there were 55 people inside and 40 people on the patio;

• On May 16, 2009, there were 45 people on the patio;

• On June 7, 2009, there were 38 people inside and 48 people on the patio.

b. On July 12, 2009 the manager of the licensed premises, Louie (Carlos) Pacheco, was drunk in the licensed premises. When first approached by police officers the manager was belligerent and menacing towards police. The manager threw patio furniture in a display of anger. The police left the premises and returned some time later to try to continue their inspection. The manager refused to allow the police to enter and locked the doors preventing police to conduct their inspection.

3. Based on the Agreed Statement of Facts, the Board found the Licensee breached subsection 45(1) of the LLA and section 43 and subsection 45(1) of the O.Reg. The Board accepted the withdrawal of the remaining allegations.

Order

4. Therefore, having considered the Joint Submission on Disposition, the Board ORDERS that the Interim Suspension currently in place on liquor licence number 808161 issued to 1419664 Ontario Inc. operating as BLUE MARTINI, 11 Hess Street, Hamilton, Ontario, L8P 3M7, liquor licence number 808161, which commenced on July 17, 2009, shall continue until 2:00 a.m. on September 8, 2009.

5. Further, the Board ORDERS that the following conditions be attached to the liquor licence:

1. Staff of the licensed premises shall not consume alcohol beverages before starting work at or while working their shift at the licensed premises;

2. All alcoholic beverages, except wine bottles or wine served in a glass container, shall be served in plastic cups or containers during hours of operation;

3. The licence holder shall deliver a “trespass letter” to Hamilton Police Service to allow police officers to attend at the licensed premises to conduct inspections and act as agents of the licence holder pursuant to the Trespass Act.

DATED AT TORONTO THIS 6th DAY OF AUGUST, 2009.

ALLAN HIGDON, BOARD MEMBER JOAN LOUGHEED, BOARD MEMBER

Attached

IN THE MATTER OF THE LIQUOR LICENCE ACT

R.S.O. 1990, chapter L.19, subsections 15(1) and 21(1)

AND IN THE MATTER OF THE LIQUOR LICENCE

OF 1419664 ONTARIO INC. OPERATING AS BLUE MARTINI,

11 HESS STREET SOUTH, HAMILTON

LICENCE NO. 808161

NOTICE OF PROPOSAL NO. 17409

AGREED STATEMENT OF FACTS

The Licence Holder, having consulted with paralegal R.J. (Bob) Plouffe, and Registrar’s counsel agree to the following facts.

1. The licensed premises were overcrowded on the following dates in the following manner. The interior premises have a capacity for 27 people and have an exterior capacity of 29 people.

(a) On May 9, 2009, there were 55 people inside and 40 people on the patio;

(b) On May 16, 2009 there were 45 people on the patio;

(c) On June 7, 2009, there were 38 people inside and 48 people on the patio.

2. Based on the facts in paragraph 1, the licence holder admits to violations of section 43 of Ontario Regulation 719/90 under the Liquor Licence Act.

3. On July 12, 2009, the manager of the licensed premises, Louie (Carlos) Pacheco, was drunk in the licensed premises. When first approached by police officers the manager was belligerent and menacing towards police. The manager threw patio furniture in a display of anger. The police left the premises and returned some time later to try to continue their inspection. The manager refused to allow the police to enter and locked the doors preventing police to conduct their inspection.

4. Based on the facts in paragraph 3, the licence holder admits to violations of subsection 45(1) (permit drunkenness) of Ontario Regulation 719/90 and subsection 45(1) of the Liquor Licence Act.

5. The licence holder apologizes to Hamilton Police Service officers for the conduct of the manager of the licensed premises on July 12, 2009.

6. The licence holder has no prior adverse record with the Commission.

JOINT SUBMISSION REGARDING DISCIPLINARY ACTION

The licence holder, having consulted with paralegal, R.J. (Bob) Plouffe, and Registrar’s counsel submit that the following disciplinary action is appropriate in these circumstances.

1. The suspension of the liquor licence commenced by interim suspension on July 17, 2009 continue until 2:00a.m. on Tuesday, September 8, 2009; and

2. The following conditions are to be imposed on the liquor licence:

(a) Staff of the licensed premises shall not consume alcoholic beverages before starting work at or while working their shift at the licensed premises;

(b) All alcoholic beverages, except wine bottles or wine served in a glass container, shall be served in plastic cups or containers during hours of operation;

(c) The licence holder shall deliver a “trespass letter” to Hamilton Police Service to allow police officers to attend at the licensed premises to conduct inspections and act as agents of the licence holder pursuant to the Trespass Act.

3. Should the Board members make the findings as admitted and impose the disciplinary action as submitted, Registrar’s counsel will withdraw the remaining allegations in Notice of Proposal Number 17409 dated July 17, 2009.

Dated in Hamilton this 27th day of July, 2007.

Maria G. Correio Richard E. Kulis

Counsel for the Registrar of Alcohol and Gaming