ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
BETWEEN:
Registrar, Alcohol and Gaming Commission of Ontario Registrar
-and-
1704477 Ontario Inc. operating as Cane Grove Restaurant Licensee
DECISION ON FINDINGS
Panel: Patricia McQuaid, Vice-Chair, AGCO Jacqueline Castel, Board Member
Decision Date: October 4, 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 1704477 Ontario Inc., Licensee: Tameshwar Veeria, On his own behalf and on behalf of the corporate licensee
Allegations
- A hearing into Notice of Proposal number 17997 dated April 12, 2010 to suspend liquor licence number 91000 (the “licence”) issued to 1704477 Ontario Inc. (the “Licensee”) operating as CANE GROVE RESTAURANT, 2356 Finch Avenue West, Toronto, Ontario, M9M 2C7, (the “establishment” or the “premises”), on the basis of alleged violations of conditions on the licence pursuant to the Liquor Licence Act (the “LLA”) was held on September 23, 2010 in the City of Toronto.
Decision
- The Board FINDS that the Licensee breached conditions on the licence, on January 17, 2010, namely: the Licensee failed to employ at least six (6) security guards wearing identifiable insignia on Friday and Saturday nights from 9:30 p.m. until 2:45 a.m. and failed to wand all patrons before entry into the licensed premises on Friday and Saturday nights.
Preliminary Matters
- Mr. Tameshwar Veeria, one of the principals of the corporate licensee appeared on behalf of the corporation without legal representation, having waived that right.
Registrar’s Evidence
Frank Marzo, an Alcohol and Gaming Commission of Ontario (“AGCO”) inspector attended the licensed premises on Sunday, January 17, 2010, arriving at 12:16 a.m. He was accompanied by Detective Constable Martin from the AGCO as well as two Toronto Police Services officers and representatives of several municipal agencies, such as the fire department and municipal licensing, all part of a full liquor licensing inspection in concert with those other agencies.
They showed identification at the door where two security staff were located. A third security officer was inside the premises. Inspector Marzo spoke to Mr. Veeria about the condition on the licence (in accordance with Exhibit 1, a decision of the Board dated December 17, 2008) that six security guards be present on a Saturday night, and the fact that only three were employed that night. Mr. Veeria responded that because it was not so busy, he did not feel he required more security. The premises was about one-third full.
Inspector Marzo made no observations about whether patrons were being “wanded” by security. At the time he entered, no patrons were entering nor did he make observations of patrons entering while he was present for the inspection which ended at 12:45 a.m. He does not know whether or not wands were being used by security guards that night
In response to a question from Mr. Veeria, Inspector Marzo stated that he made no observations of lighting at the rear of the premises. He acknowledged that he was there to conduct a full liquor licence inspection to ensure adherence to the requirements of the LLA.
Licensee’s Evidence
Mr. Veeria called no witnesses, but did himself provide evidence and a statement to the Board. He expressed frustration about the level and number of inspections at his premises, and the significant cost of running such a business and defending allegations in Provincial Offences Court. In his words, he is trying to make an honest living yet it is increasingly difficult to do so.
Mr. Veeria acknowledged the agreement as set out in the Board Decision of December 17, 2008 by which he consented to the conditions in issue at the hearing being placed on the licence, due to public safety concerns stemming from an incident on October 20, 2007.
On January 17, 2010, less than 60 patrons were present. Three security guards were on duty; he would call in 2 or 3 more if necessary. Business was slow. He described the business as tense, not like it was before. He does not have the money to adhere to the stipulation for 6 security guards.
Mr. Veeria stated that they were not “wanding” patrons that evening. A wand does not detect things like marijuana. They were conducting “pat downs” of patrons to search for marijuana.
Responding to a question from Ms Khan, Mr. Verria stated that the premises has been closed since August 2, 2010 while he decides whether he can afford to continue the business. He is aware of subsection 56(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the LLA requiring him to surrender his licence if he ceases to carry on the business. At this point, his decision whether to turn in his licence will be based on the outcome of the hearing.
Reasons and Analysis
As Ms Khan stated in her submissions, this is an uncomplicated case. There are several conditions on the licence, two of which are in issue: a requirement for six security guards between certain hours on Friday and Saturday nights and that patrons be ”wanded” on Friday and Saturday nights. The NOP alleges that neither condition was followed on January 17, 2010.
Mr. Veeria admitted in his evidence that only three security guards were present at the time of the inspection. Ms Khan submits that it is not appropriate for Mr. Verria to make the decision not to comply with the security guard condition because business is slow, rather if the condition is not warranted there is a process by which a licensee can apply to remove a condition.
The Board commends Mr. Veeria for his candour. He freely stated that there were three, not six, security present, patrons were not being wanded (this admissions despite Ms Khan’s acknowledgement that there was insufficient evidence from the inspector on this point), and further, though not alleged in the NOP, that the exterior lighting in the rear parking lot had not been turned on though the inspector made no such observation despite this also being a condition on the licence as set out in Exhibit 1. Finally, Mr. Verria in his evidence offered that the business was shut down, though potentially temporarily.
With this clearly articulated evidence before it, the Board must find that a breach of the two conditions, as set in the NOP occurred on January 17, 2010. These are conditions, among others, imposed by the Board as a result of a consent agreement between the Registrar and the Licensee in December, 2008.
Equally clear was Mr. Verria’s frustration as a small business owner with the rigidity of the conditions and the regulatory regime in which he finds himself. There may be mitigating factors which Mr. Veeria may wish to put to the Board when he, as well as the Registrar’s Representative, make written submissions regarding sanction following receipt and review of this decision.
Conclusion
- For the above reasons, the Board FINDS the Licensee contravened conditions on the licence, namely that:
a. The licensee shall employ at least six (6) security guards wearing identifiable insignia on Friday and Saturday nights from 9:30 a.m. until 2:45 a.m.
b. The licensee shall wand all patrons before entry into the licensed premises on Friday and Saturday nights.
- The Board invites written submissions on penalty from the respective parties. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision. The Licensee shall have seven (7) days to serve and file a written response. The Registrar’s representative may serve and file a reply within three (3) days of the receipt of the Licensee’s response. All submissions are to be filed with the Manager, Hearings Department, Alcohol and Gaming Commission, at the address on the front page of this decision in accordance with the Board’s Rules of Practice.
DATED AT TORONTO THIS 4 DAY OF October , 2010
PATRICIA MCQUAID, VICE-CHAIR JACQUELINE CASTEL, BOARD MEMBER