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-
1590677 Ontario Inc., operating as Island Jerk Restaurant Licensee
ORDER
Panel: Patricia McQuaid, Vice-Chair, AGCO S. Grace Kerr, Board Member
Decision Date: December 1, 2010 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 ) Richard Kulis, Representative 1590677 Ontario Inc., Licensee ) Cheryl Nedrick, On behalf of the Corporate Licensee
Allegations
A hearing into an Amended Notice of Proposal number 18337 dated October 8, 2010, to revoke a liquor licence, and an Order dated September 25, 2010, to immediately suspend a liquor licence on an interim basis to liquor licence number 806671 (the "Licence"), issued to 1590677 Ontario Inc. (the "Licensee"), operating as ISLAND JERK RESTAURANT, 1800 Bank Street, Unit 18, Ottawa, Ontario, K1V 0W3, on the basis of alleged violations of section 6 and subsections 45(1) and 45(2) of the Liquor Licence Act (the "LLA") and sections 66, 45.1 and 45.2 and subsections 45(1), 60(2) and 63.1(1) of Ontario Regulation 719/90, made pursuant to the LLA, was commenced by teleconference on October 20, 2010 in the City of Toronto and continued on November 23 and 25, 2010 in the City of Ottawa.
On September 25, 2010, the Registrar ordered the interim suspension of the Licensee's licence in the interest of public safety and subject to an Order by the Board of the Alcohol and Gaming Commission of Ontario (the "Interim Suspension"). The hearings office received Ms Nedrick's request for a hearing in respect of the Interim Suspension Order on or about October 6, 2010. The Board, after hearing submissions from Mr. Kulis and Ms Nedrick on October 20, 2010 ordered that the interim suspension remain in effect until the earlier of the time when the Board renders its final decision on the matters before it or the Board orders otherwise.
The hearing re-convened, in Ottawa, on November 23, 2010 at which time Ms Nedrick was represented by counsel. Evidence was called, after which Ms Nedrick's counsel requested that the interim suspension be lifted. After hearing submissions, the Board made an oral Order that the Interim Suspension remain in effect, but stated that the motion could be renewed at the conclusion of the evidence on the next hearing date, that is, on November 25, 2010.
On November 25, 2010, counsel for Ms Nedrick requested that he be removed as counsel of the record, which request was granted. Ms Nedrick then requested an adjournment of the hearing to allow her to retain new counsel. This request was not opposed by Mr. Kulis. The Board, recognizing Ms Nedrick's entitlement to legal representation and her stated wish to appear with representation, granted the adjournment request, peremptory upon the Licensee and her counsel for the next scheduled day for the hearing, namely December 6, 2010.
Ms Nedrick then made a motion for removal of the interim suspension order. The Board heard submissions from her and from Mr. Kulis, who opposed the motion. The Board reserved its decision.
Reasons and Order
The Board, having considered the evidence heard to date and the submissions of Ms Nedrick and Mr. Kulis on November 25, 2010 ORDERS that the Interim Suspension Order dated September 25, 2010 placed on licence number 806671 issued to 1590677 Ontario Inc. operating as ISLAND JERK RESTAURANT, 1800 Bank Street, Unit 18, Ottawa, Ontario, K1V 0W3, be RESCINDED on conditions as set out in paragraph 11 below. Reasons for the Order follow.
The evidence heard to date relates to the incident on September 25, 2010 at the Sunrise Banquet Hall, an event space that bears the same municipal address as the licensed premises but is in a separate unit. The Licensee was operating a liquor service event pursuant to the caterer's endorsement. At approximately 2:30 a.m., an altercation occurred resulting in personal injury to several persons. Public safety was compromised.
The interim suspension order was made due to these events. As stated in the Registrar's order, the use of the caterer's endorsement by this Licensee raises significant public safety concerns. The interim suspension order does not refer to any specific public safety issues with respect to the licensed establishment per se.
The evidence does suggest to the Board a public safety concern with use of the caterer's endorsement. The event of September 25, 2010 was a "promoted" event where a large number of persons was present (approximately 200). In the early morning hours, control of the crowd was inadequate. However, the Board notes that the evidence does not raise public safety concerns at the licensed premises of Island Jerk Restaurant itself, where the licensed capacity is 40 persons and which is not open, according to Ms Nedrick, in the early morning hours.
The licensed premises have now been closed for approximately 66 days pursuant to the Interim Suspension Order. The prejudice to the Licensee of keeping the establishment closed on an interim basis must be assessed against the public safety concern, especially taking into account the time it will take to reach a final decision in this matter as the hearing is expected to be lengthy.
Based on the evidence currently before it, the Board is of the view that the lifting of the interim suspension order for the licensed premises, subject to conditions, will ensure that public safety should not be compromised.
The Board therefore ORDERS that the Interim Suspension Order is hereby RESCINDED, subject to the following conditions:
Use of the caterer's endorsement is suspended;
The Licensee shall not host or offer any special or promoted events at the licensed premises;
The sale and service of alcohol at the licensed premises is only permitted as follows: Monday through Wednesday between the hours of 11 a.m. to 10 p.m. and Thursday through Sunday between 11 a.m. and 11 p.m., with signs of sale and service to be cleared within 45 minutes of the close of alcohol service.
Finally, the Board wishes to address another issue which arose briefly in Ms Nedrick's submissions on both October 20 and which she expanded upon in her submissions on November 25, 2010. She stated that she transferred her shares in the corporate licensee to her son Danell Lodge, although she still manages the business. It is not clear whether she remains an officer or director of the corporation. In response, Mr. Kulis has advised that the AGCO licensing branch has not been advised of the transfer, contrary to the provisions of the LLA.
Specifically, section 16 of the LLA states: "Except as permitted by the regulations, if there is a prescribed change of ownership of a business carried on under a licence or a change of licensee, no person shall keep for sale, offer for sale or sell liquor...under the authority of the licence unless the licence is transferred by the Registrar in accordance with this Act and the regulations."
The Board is not ruling on the issue of a transfer of ownership of the licensee corporation. This is not properly before it at this time. However, as a result of the Board lifting the interim suspension, this issue becomes more cogent to the Licensee, as a practical matter. The Board urges upon Ms Nedrick to take heed of this issue and take action as appropriate and permissible, prior to resuming the sale and service of alcohol pursuant to the conditions of this Order. Otherwise, the Licensee may well be in violation of the LLA. It is incumbent upon the Licensee, not the Registrar or this Board, to ensure compliance with this (and all) provisions of the LLA, as soon as possible.
DATED AT TORONTO THIS 1st DAY OF December, 2010.
PATRICIA MCQUAID, VICE-CHAIR, AGCO S. GRACE KERR, BOARD MEMBER