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-
2122049 Ontario Inc. operating as Nadia’s Place
Licensee
DECISION
Panel: Kirsti Hunt, Vice-Chair, AGCO Eleanor Meslin, Board Member
Decision Date: May 27, 2010
Hearing Location: Toronto, Ontario
Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto, Ontario 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 2122049 Ontario Inc., Licensee )
Allegations
- A hearing into Notice of Proposal number 17681 dated December 3, 2009 to suspend liquor licence number 203706 issued to 2122049 Ontario Inc. (the “Licensee”), operating as NADIA’S PLACE, 210 Markham Road, Scarborough, Ontario, M1J 3C2 (“the premises”), on the basis of alleged violations of subsection 45(1) of the Liquor Licence Act (the “LLA”) and subsection 25(1) and section 29 of Ontario Regulation 719/90 (the “OR 719/90”) was held on April 28, 2010 in the City of Toronto.
Decision
- After considering all of the evidence and the Registrar’s submissions the Board finds the Licensee violated subsection 45(1) of the LLA, subsection 25(1) and section 29 of the OR 719/90. Reasons to follow.
Preliminary Matters
When the Licensee or her representative did not appear at the hearing by 9:50 a.m., the Registrar’s Representative made a motion to proceed with the hearing ex parte.
Two Alcohol and Gaming Commission of Ontario (“AGCO”) hearing staff testified regarding prior notice of the hearing and efforts made on the hearing day to contact the Licensee or her representative.
Teresa Lyn Standish, an Administrative Clerk with the AGCO, testified that on April 23, 2010 she called the Licensee’s Representative, Ross Legal Services, to remind them of the hearing. There was no answer and she left a message giving the time, date and location of the hearing. There was no response from Ross Legal Services or the Licensee.
The morning of the hearing when neither the Licensee nor the Representative had appeared by 9:30 a.m., on instructions from the Board she called both the Licensee and her Representative twice, and there was no answer to her calls. She did not leave any message.
When she advised the Board that she had called the Licensee at another number at Ross Legal Services, but had not called her at home, she was instructed by the Board to do so immediately. She reported back that she called three times and there was no response.
Cassandra Platt, the Acting Case Management Co-ordinator at the AGCO, is responsible for sending out the Notices of Hearing.
She testified that she had sent a Notice of Hearing to the Licensee on March 23, 2010 indicating that the hearing would be held on April 28, 2010, at 9:00am, at 90 Sheppard Avenue East in Toronto.
She received a letter on April 16, 2010 from the Licensee’s Representative requesting an adjournment, which was denied.
There had been one previous adjournment and at that time the Licensee was advised that the new hearing date would be set peremptory on the Licensee.
There has been no further contact with the Licensee.
The Registrar’s Representative’s motion to proceed in the absence of the Licensee was granted. Proper notice was given and the Hearings Office had followed up with a telephone message on March 23, 2010 giving the details of the hearing date and phone calls were made the morning of the hearing date, with no response from the Licensee or her Representative. The hearing proceeded at 10:15 a.m.
Registrar’s Evidence
Devin Sookdeo is an inspector for the AGCO. He attended the premises at 2:56 a.m., on August 3, 2009, with AGCO Inspector Steven Hetherington.
He observed two females inside, one behind the bar, the other in front of it. He saw a green glass bottle and a glass on the bar, in front of the women.
He and Inspector Hetherington knocked on the door and held their badges up to the window. Inspector Hetherington told him that the female behind the bar was the owner, Nadia Deen.
He saw Ms Deen remove the bottle from the bar, as the other female came to the door. They identified themselves as inspectors and told her to open the door, but she just turned around and returned to the bar. The other female then came and opened the door.
When he entered he saw a glass, filled with a red liquid, in the sink behind the service bar, and noticed the smell of beer around the sink. The owner admitted that the glass contained Heineken beer and clamato juice. Heineken is always in a green bottle. He also observed two empty shot glasses in the sink that smelled of liquor. Inspector Sookdeo was advised by Inspector Hetherington that there was a ½ full bottle of Moosehead in the bar fridge.
Inspector Hetherington advised the owner that sale and service of alcohol must stop at 2:00 a.m. and all alcohol must be cleared by 2:45 a.m., and that they would be reporting these infractions. The inspector left at 3:07 a.m.
Stephen Hetherington is an inspector with the AGCO. He attended the premises with Inspector Sookdeo on August 3, 2009 at 2:56 a.m.
He noted that the lights were on in the premises and that the door was locked. He corroborated Inspector Sookdeo’s testimony regarding their observations on arriving, and their attempts to gain entry. When he recognized the owner, behind the bar, he bent down and yelled through the mail slot, calling her by name, identifying himself and telling her to open the door, which she then did.
He indicated that he was familiar with the premises and that it was about 25 feet from the bar to the door. They had been knocking for about two minutes before the owner opened the door.
On inspection he also saw the glass of red liquid, that had been on the bar, in the sink with two shot glasses. He looked for the green beer bottle and found a ½ full green Moosehead bottle in the bar fridge.
When he advised Ms Deen about hours of sale and service and clearing she indicated that she was aware of them because he had told her about them on previous occasions. He indicated that the infractions would be reported. She was apologetic but asked him for “a break” because it was Caribana weekend and she had just returned to the bar, which had been closed for the day.
Responding to the Board’s question of whether it was an infraction to have shot glasses in the sink, Inspector Hetherington said it wasn’t, but since she had been closed all day he didn’t believe they would still smell of alcohol.
Submissions
The Registrar’s Representative submitted that the allegations had been proven, on a balance of probabilities. The evidence of the inspectors was clear in that the Licensee had obstructed the investigation by removing the glass and bottle from the bar top before opening the door to the inspectors, in an attempt to withhold or conceal things required for an inspection.
Inspector Hetherington’s evidence, that he knocked for about two minutes before the door was opened, when it should only have taken eight to 10 seconds to unlock it, and that the Licensee was clearing during that time is a breach of subsection 45(1) of the LLA.
Based on Inspector Hetherington’s evidence, that the shot glasses in the sink would not have smelled of liquor and the glass would not still be full of clamato juice and beer, if the bar had been closed all day, the Registrar submitted that, on a balance of probabilities, alcohol was served after 2:00 a.m., a violation of subsection 25(1) of OR 719/90.
At 2:56 a.m., there were still signs of service on the bar, therefore section 29 of OR 719/90 was also breached.
The Registrar’s representative submitted that all the allegations had been proven as alleged.
Reasons and Findings
The Board has carefully considered the evidence of both inspectors. There was no evidence by the Licensee to refute the allegations.
The Board accepts the evidence of the Inspectors that the door was locked when they arrived and was not opened immediately when they knocked and identified themselves. This clearly violates subsection 45(1) of the LLA in that the Licensee obstructed the inspectors from carrying out an inspection and tried to hide the signs of service before allowing them to enter the premises. Therefore the Board finds, on a balance of probabilities that the Licensee has violated subsection 45(1) of the LLA.
As noted above, the Licensee’s actions of delay and efforts to hide signs of service were such as to obstruct the inspectors from carrying out their inspection. The Board also notes that she was not present at the hearing, and therefore it was not possible for her statements to be subject to cross-examination. Given her actions, the Board does not find her statements, unless otherwise corroborated, to be reliable. In particular, the Board does not believe the Licensee’s statement, to the inspectors, that she had been closed all day and she had just returned to the bar. Based on the inspectors’ evidence, regarding the glass of alcohol mix and beer bottle on the bar at 2:56 a.m., which were later found in the sink, the Board finds, on a balance of probabilities, that the bar was open that day, and there had been service of alcohol after 2:00 a.m., which the Licensee was trying to hide. Therefore, there were violations of subsection 25(1) and section 29 of OR 719/90.
Decision on Sanction
The Registrar requested a 14 day suspension.
The premises have been licensed since February 2007. In December 2007 there was an inspection under similar circumstances. At 3:35 a.m., inspectors found patrons at the service bar with cold, full bottles of beer, while the owner Ms Deen was present.
The Licensee, on that occasion, agreed to a five day suspension, which was served in May 2008.
This is the second time that the Licensee has been serving after hours and failed to clear. Added to this is the finding that the Licensee obstructed an investigation by attempting to hide the signs of service.
In addition, the Licensee has shown a lack of respect for the Board by not appearing at the hearing and not notifying the Board to that effect.
Reasons and Decision on Sanctions
The Board has carefully considered the Registrar’s submissions and accepts them.
Given that there was a previous similar infraction resulting in a five day suspension, in addition to the current findings of obstructing the investigation by hiding the signs of service and the Licensee’s failure either to appear at the hearing, or notify the Board of the reasons for the non-appearance, the Board finds a 14 day suspension is warranted.
Order
Therefore, the Board ORDERS that liquor licence number 203706 issued to 2122049 Ontario Inc. operating as NADIA’S PLACE, 210 Markham Road, Scarborough, Ontario, M1J 3C2, be suspended for FOURTEEN (14) consecutive days.
The Licensee shall submit proposed suspension dates in writing to the Manager of Hearings, Hearings Department, Alcohol and Gaming Commission of Ontario at the address on the front of this decision within seven (7) days of receipt of the Board’s decision. The Board will set suspension dates without further notice to the Licensee if proposed dates are not provided within that time. The suspension must be served on days the establishment normally operates. The suspension may not start earlier than twenty (20) days from the date of this decision and must be completed within ninety (90) days of this decision.
DATED AT TORONTO THIS 27^th^ DAY OF MAY , 2010
KIRSTI HUNT, VICE-CHAIR, AGCO ELEANOR MESLIN, BOARD MEMBER