Registrar, Alcohol and Gaming Commission of Ontario v. 2203685 Ontario Inc., 2010 CanLII 80973

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-

2203685 Ontario Inc. operating as Caribu West Indian Cuisine (Licensee)

DECISION

Panel: Kirsti Hunt, Vice-Chair, AGCO Brian J. Ford, Board Member

Decision Date: October 20, 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: Scott Hutchinson, Representative 2203685 Ontario Inc., Licensee: Ramesh Harilall, On his own behalf and on behalf of the Licensee

Allegations

1A hearing into the appeal of Order of Monetary Penalty (“OMP”) number 225 dated April 13, 2010, issued to 2203685 Ontario Inc. (the “Licensee”), operating as CARIBU WEST INDIAN CUISINE, 3412A Weston Road, Toronto, Ontario, M9M 2W1 (the “establishment” or the “premises”), liquor licence number 802245 (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 a condition on the licence, made pursuant to the Liquor Licence Act (the “LLA”), was held on July 29, 2010 in the City of Toronto.

Decision

2After considering all the evidence and submissions, the Board DISMISSES the alleged violations contained in the OMP and SETS ASIDE the monetary penalty sought by the Registrar. Reasons follow.

Preliminary Matters

3The Licensee was not represented by Legal Counsel or an Agent and waved his right to Legal Counsel or Agent.

4Mr. Hutchinson submitted a copy of the Liquor Licence of 2203685 Ontario Inc., operating as Caribu West Indian Cuisine, 3412A Weston Road, Toronto, entered as exhibit # 1.

Registrar’s Evidence

5Frank Marzo is an Inspector with the Alcohol and Gaming Commission of Ontario (the “AGCO”). He stated he was part of a Joint Forces inspection team on January 16, 2010 that visited Caribu West Indian Cuisine for a routine liquor inspection. The team was composed of members of the Toronto Police Services, Toronto Fire Department, and Toronto Health Department.

6Inspector Marzo stated that on entering the licensed premises at 10:54 p.m. he noted that there was no security guard at the door or on the premises.

7Inspector Marzo was shown a copy of the Liquor Licence for Caribu West Indian Cuisine (Exhibit # 1) and he pointed out that Condition # 4 on the Licence read:

a. The licensee shall have at least one security staff member posted at the door of the establishment on Thursday, Friday and Saturday nights from 10:00 p.m. until the last patron has left the establishment after the establishment has closed for the night.

8Inspector Marzo stated he stayed approximately 10 minutes in the establishment and then left. He also stated they were serving alcohol in the establishment, while he was there.

9Inspector Marzo stated the capacity for the establishment was 38 patrons and staff and that on the night in question the establishment was at about 50 per cent of capacity. He also stated that there were no other issues during the inspection.

10There was no cross-examination.

11Mr. Hutchinson submitted AGCO OMP number 0225 dated April 13, 2010, entered in evidence Exhibit # 2.

12He also submitted the Licensee's response to Incident number 536192 in which the Licensee apologized for the tardiness of his security guard, Exhibit # 3.

Licensee’s Evidence

13Mr. Ramesh Harilall stated that he agreed with the testimony that the security guard was not there when the AGCO Inspector arrived. He was advised by the staff that the security guard had not shown up.

14Mr. Harilall contacted the security company from which he contracts a security guard and was told that the guard on that particular night was new. He was supposed to be at the establishment at 10:00 p.m. but thought that he started at 11:00 p.m. as he did on other sites.

15Mr. Harilall also stated that he was informed that the security guard got lost on his way to the site, and as a result did not arrive on site until ll:05 to 11:10 p.m.

16Mr. Harilall submitted a letter from Sentinel Security which corroborated Mr. Harilall's testimony with respect to the guard’s late arrival, entered into evidence Exhibit # 4.

17Under cross-examination, Mr. Harilall stated that he understood and was aware of the condition on his licence.

18Mr. Harilall stated when he found the security guard had not showed up, he took immediate steps to find out what happened. He contacted the security company and while he was on the phone the guard showed up.

19He stated the security guard showed up at 11:05 to 11:10 p.m.

20Mr. Harilall stated the staff did not stop serving when the guard was not there but they may not have been aware due to the fact the Guard comes and sits at the front door without speaking to anyone on most occasions.

Registrar’s Submissions

21Mr. Hutchinson stated there is no dispute as to what happened. The establishment was operating outside of the condition on the Liquor Licence.

22He points out that the employees did not stop serving liquor when the security guard was not there and did not phone when the guard did not arrive. They did nothing until the AGCO Inspector arrived and advised them the guard was not there as required.

23Mr. Hutchinson believes the breach occurred and that it would be appropriate to leave the penalty in place as proposed.

24Mr. Hutchinson stated that the security guard was there for safety concerns.

25Mr. Hutchinson believes there is nothing to justify overturning the penalty.

Licensee’s Submissions

26Mr. Harilall stated the security guard did not show and apologises for that, but, noted that this was his first offence. Mr. Harilall stated that he had not had any problems or incidents since he took over the business.

27Mr. Harilall stated that none of his staff contacted him to inform him that the security guard did not show.

28Since the incident, he has informed the security company that he wants the guard there at 9:55 p.m., and have him sign in with the person running the bar when he or she arrives.

29Mr. Harilall stated he also informed staff that they should stop serving liquor if the guard does not show.

30Mr. Harilall also informed the Board that he has made an application for removal of the condition to have a security guard. He made the application on March 24, 2010. Mr. Harilall submitted a copy of the application for removal or change of a condition, Exhibit # 5.

31Mr. Harilall stated it is financially very onerous to have a security guard for an establishment with a capacity of 38 persons. He noted on the night in question, there were only 15 to 20 patrons in the establishment. Usually on a Thursday, there are only about eight to ten.

32Mr. Harilall also stated that he has security cameras, two inside the premises and two outside. These were put in as soon as he took over the business.

33Mr. Harilall stated the security guard previously just came and sat at the front without checking in.

Decision and Reasons

34The Board has heard the evidence of the Registrar which is undisputed by the Licensee that when the AGCO Inspector was at the Caribu West Indian Cuisine there was no security guard present. The evidence is that the Inspector was on the premises for approximately ten minutes.

35The evidence also showed that shortly after the AGCO Inspector left between 11:05 to 11:10 p.m., the security guard showed up.

36The Licensee has a standing contract with a security guard company to supply a security guard for his establishment on the nights required.

37On the night in question, the security guard assigned to his establishment had not worked there previously and thought that the starting time was 11:00 p.m. not 10:00 p.m. and arrived late. He also got lost on his way there and was an additional five to ten minutes late.

38The Licensee has made changes to ensure that this does not happen again and furthermore has applied to have the condition removed due to the financial burden it has on his small establishment.

39The Board notes that there may have been a technical breach of the condition of the licence. However the Board notes that if there was a breach it was not an overt action on the part of the Licensee and happened as a result of circumstances that were out of his control.

40The Licensee did not wilfully breach the condition of his licence. Moreover, he was very apologetic of it having happened.

41The Board feels that the proposed penalty does not fit with the spirit or intent of the legislation or condition on the licence.

42Clearly there was no intention by the Licensee to breach the condition on the licence. On the contrary, the Licensee had done everything to ensure the condition was being met through his standing contract with the security company. The Board, in the circumstances, FINDS that there was not a breach of the condition as intended by the wording of the condition on the Licence.

43Therefore, the Board sets aside the OMP.

Conclusion

44For the reasons given, the Board DISMISSES the alleged violation contained in the OMP number 225, issued to 2203685 Ontario Inc., operating as CARIBU WEST INDIAN CUISINE, 3412A Weston Road, Toronto, Ontario, M9M 2W1, liquor licence number 802245, and SETS ASIDE the monetary penalty sought by the Registrar in the amount of $2,000.