Registrar, Alcohol and Gaming Commission of Ontario v. 1634168 Ontario Inc., 2010 CanLII 80962

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The: ALCOHOL AND GAMING REGULATION AND PUBLIC PROTECTION ACT S.O. 1996, C.26, S.14.1, SCH

B E T W E E N:

Registrar, Alcohol and Gaming Commission of Ontario Registrar

-and-

1634168 Ontario Inc. operating as Ye Olde Brunswick House Licensee

DECISION

Panel: Jacqueline Castel, Board Member Brian J. Ford, Board Member

Decision Date: July 13, 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 ) Rena Khan, Representative 1634168 Ontario Inc., Licensee ) Randall Barrs, Representative

Allegations

1. A hearing into the appeal of Order of Monetary Penalty (“OMP”) number 210 dated March 16, 2010, imposing a monetary penalty of $750 on 1634168 Ontario Inc. (the “Licensee”), operating as YE OLDE BRUNSWICK HOUSE, 481 Bloor Street West, Toronto, Ontario, M5S 1X9 (the “establishment” or the “premises”), liquor licence number 91162 (the “licence”), pursuant to section 14.1 of the Alcohol and Gaming Regulation and Public Protection Act, 1996, in respect of an alleged violation of subsection 34(1) of Ontario Regulation 719/90 (the “O.Reg”), made pursuant to the Liquor Licence Act (the “LLA”), was held on July 8, 2010 in the City of Toronto.

Decision

2. After considering all the evidence and submissions, the Board DISMISSES the alleged violation of subsection 34(1) of the O.Reg and SETS ASIDE the monetary penalty sought by the Registrar. Reasons follow.

Preliminary Matters

3. The Board ordered that witnesses be excluded on consent.

Registrar’s Evidence

4. Sergeant (“Sgt.”) Jeffrey Zammit of the Toronto Police Services testified that he was working in uniform and on police bicycle in the Bloor/Brunswick area on September 13, 2009. He was with a team of five or six officers. They had been assigned to the area because of complaints of disturbances in the community related to Frosh week.

5. At 2:00 a.m. he observed a female in front of the establishment with a bottle of alcohol in her hand. He seized the bottle and determined its contents to be Smirnoff. The bottle was about three-quarters full. He identified the female who was holding the bottle by her driver’s licence as AK. AK told him she thought she was on a licensed patio and he believed her. As such, he did not lay charges and only cautioned her.

6. Next, Sgt. Zammit approached the two staff at the front door. He asked them to keep a better eye on customers leaving the premises with beverage alcohol and they said that they would. The two doormen were cooperative and good to deal with. They told him they did not see anyone exit with beverage alcohol and that they were trying their best.

7. Sgt. Zammit did not see AK exit the premises.

8. On cross-examination, Sgt. Zammit stated that he approached AK quickly.

9. Sgt. Zammit further admitted that he does not know whether AK or someone else removed the alcohol from the premises. He only observed AK with the alcohol in front of the premises.

10. AK attended the establishment on September 13, 2009 at about 11:00 a.m. She was there for a couple of hours. She was sharing a Smirnoff with a friend. Her friend took the bottle outside and handed it to her to take a sip once they were outside. A police officer immediately approached her and seized the bottle.

11. The police officer told her she was drinking in a public place, which was an offense. AK told the officer she was sorry and that she genuinely believed she was on a licensed patio.

12. She observed a doorman on the left side of her as she exited. He did not say anything to her when she exited.

13. She does not recall how much she had to drink that evening.

14. On cross-examination, AK stated that she did not recall what she or her friend, who took the bottle of Smirnoff outside, were wearing. She also could not recall how he was holding the bottle.

15. She confirmed that the police approached her as soon as her friend passed her the bottle outside.

16. She further confirmed that there was at least one doorman or security officer at the entrance when she and her friend exited.

Licensee’s Evidence

17. Jason Cho is the General Manager of the establishment and he was working on the evening of September 13, 2009.

18. He does not recall exactly when he was advised of the infraction but it was definitely over a month after the incident. He was not advised of any infractions on the night in question.

19. He employs fourteen doormen. There are two exits to the establishment and at least two or three doormen posted at each exit. At closing time, at least five doormen are assigned to the street to ensure there are no problems.

20. All staff are aware that patrons cannot leave the premises with liquor and the doormen know not to let anyone leave with liquor.

21. He has no knowledge of any other incidents of patrons removing liquor from the premises.

22. On cross-examination, Mr. Cho admitted that he was not at the door when AK exited.

23. He did not speak to the door staff about the incident on the night in question because it wasn’t brought to his attention.

24. The door staff typically bring all issues to his attention.

25. In response to a question from the Board, Mr. Cho indicated that closing time is 2:30 a.m.

Registrar’s Submissions

26. It is not unusual for people to try and sneak liquor out of the premises. This is one of the main reasons it is a breach of the O.Reg.

27. The evidence of Sgt. Zammit and AK was consistent.

28. The Licensee’s counsel did not call the doorman to give evidence about what happened.

29. On a balance of probabilities, the Registrar has established that the Licensee breached subsection 34(1) of the O.Reg. and the Board should therefore uphold the OMP.

Licensee’s Submissions

30. The Licensee has owned this establishment for five years and he is also the owner of several other establishments. He has always had an excellent record and it is very important to him to maintain this record, which is why he is incurring the expense of appealing a monetary penalty of $750.

31. The Licensee concedes that AK’s friend exited the premises with a bottle of Smirnoff.

32. However, this is an isolated incident by a very diligent Licensee.

33. The case, therefore, turns on whether the Licensee permitted AK’s friend to leave with the bottle of Smirnoff. The Licensee submits that the door staff did not witness AK’s friend leave with the Smirnoff and the police officer approached AK immediately after she exited.

34. The Licensee was not notified of the infraction until January 4, 2010. It is very difficult to build a defense when notification is received almost four months after the incident.

35. The doormen did not notify Mr. Cho of the incident because Sgt. Zammit did not make a big issue of it and he only cautioned AK.

Reply Submissions

36. The Registrar met the burden of establishing “permit”, as AK testified that she walked past a doorman and he did not say anything to her.

Reasons/Findings

37. For a finding under subsection 34(1) of the O.Reg., there is a two part test. First, it must be established that someone removed beverage alcohol from the premises to which the licence applies, and second, it must be established that the licensee permitted same. To permit, a licensee must have known, or ought reasonably to have known, that someone removed beverage alcohol from the licensed premises.

38. The Licensee did not contest AK’s evidence that her friend removed a bottle of Smirnoff from the licensed establishment. As such, this case turns on whether the Licensee permitted AK’s friend to remove the bottle of Smirnoff.

39. In the circumstances of this case, the Board is not satisfied that the Registrar has established, on a balance of probabilities, that the Licensee permitted the removal of the bottle of Smirnoff. Officer Zammit did not witness the Smirnoff being removed from the premises. AK testified that she could not recall how her friend was holding the bottle. No other evidence was led regarding whether AK’s friend concealed the bottle of Smirnoff when he exited or whether he exited with the bottle in plain view of the doorman. Further, no evidence was led regarding whether AK’s friend was in clear view of the doormen when he exited or whether other patrons exiting at the same time may have obstructed the doormen’s view of AK’s friend. In fact, there was no evidence at all regarding how busy the front entrance/exit was when AK and her friend left. In these circumstances, the Board cannot infer that the doormen saw or should reasonably have seen the bottle of Smirnoff being removed.

40. Ms Khan stated that the test of permit was met because the doorman did not say anything to AK when she exited. However, AK, who the Registrar called as a witness, clearly testified that she was not the one who exited the premises with the bottle of Smirnoff, and there was no evidence contradicting this testimony. The Board found AK to be very forthright in her testimony and also notes that she has no self-interest in the outcome of the hearing.

41. Licensees must be diligent in enforcing their obligations under the LLA and cannot be willfully blind to escape a finding of permit. This Licensee was well staffed at the doors on the night in question. Sgt. Zammit also volunteered during direct examination that the door staff were very cooperative. Furthermore, AK and her friend were not on the sidewalk for a long time with the bottle of Smirnoff. Sgt. Zammit approached her and seized the bottle immediately after they exited and AK’s friend passed her the bottle. In these circumstances, along with those outlined in paragraph 39 above, the Board is not satisfied that this Licensee knew or ought to have known about the removal of the bottle of Smirnoff or was willfully blind.

Conclusion

42. For the reasons given, the Board DISMISSES the alleged violation contained in OMP number 210, issued to 1634168 Ontario Inc., operating as YE OLDE BRUNSWICK HOUSE, 481 Bloor Street West, Toronto, Ontario, M5S 1X9, liquor licence number 91162, and SETS ASIDE the monetary penalty sought by the Registrar.

DATED AT TORONTO THIS 13th DAY OF July, 2010

JACQUELINE CASTEL, BOARD MEMBER BRIAN J. FORD, BOARD MEMBER