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-
Café Roger Milla Inc., Licensee operating as Café Roger Milla
Licensee
DECISION
Panel: Allan Higdon, Board Member
Eleanor Meslin, Board Member
Decision Date: October 28, 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
Allegations
- A hearing into the appeal of Order of Monetary Penalty (“OMP”) number 237 dated June 14, 2010, issued to Café Roger Milla Inc. (the “Licensee”), operating as CAFÉ ROGER MILLA, 999 Albion Road, Toronto, Ontario, M9V 1A6 (the “establishment” or the “premises”), liquor licence number 813696 (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 section 29 of the Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on September 20, 2010 in the City of Toronto.
Decision
- The board gave an oral decision CONFIRMING the Registrar’s Order of Monetary Penalty of $3000. Reasons follow.
Preliminary Matters
Since the Licensee did not appear at the hearing, nor a representative for the Licensee, the Registrar requested that the Board proceed ex parte.
Sworn evidence was presented by Teresa Standish, of the Alcohol and Gaming Commission of Ontario (“AGCO”), Hearings Department support staff that she had attempted to contact by telephone, Blais Nana, one of the Licensee’s directors on Friday, September 17, 2010 at 12:00 p.m., 1:30 p.m. and 3:15 p.m. and today (September 20, 2010) at 9:25 a.m. and 9:37 a.m., at both the home and business phone numbers (289) 689-7751, (416) 644-0411.
There was no answer at either number. Ms Standish also called the Licensee’s cell phone number (416) 871-8470 and the message said that the customer was unavailable.
The Registrar submitted the Affidavit of Service to Blais Nana, entered as Exhibit # 1. It provided the date the hearing would be held.
The Board ruled that since sufficient attempts had been made to contact the Licensee, the hearing would proceed ex parte.
Registrar’s Evidence
Christopher Kennedy is a police officer with Toronto Police Services.
On February 6, 2010 at 4:29 a.m. he attended the premises in uniform with another officer. The police had received a call from a tenant in the unit above the premises, complaining about noise from the establishment.
Officer Kennedy returned the tenant’s call asking if the noise was continuing and she replied “yes” and stated that it happens every night, keeping her 5-year-old awake.
When he entered the premises at 4:52 a.m. the music was very loud. He observed 20 patrons with red plastic tumblers containing what appeared to be alcohol.
The bar was still in service. Bottles of rum, vodka and whiskey were on the bar counter.
He located the owner and asked to see the liquor licence.
He then observed some patrons leaving and others going downstairs to the basement. When he went down, he observed two intoxicated males, and an intoxicated female exiting the washroom. He noted there was a strong marijuana odour in the washroom and saw a consumed “roach” on the floor near the toilet. A second female, S.M. also in the basement, said she knew nothing about it and returned upstairs while the officer was speaking to the first female. When the officers returned upstairs, she was gone.
Officer Kennedy then told the owner that charges of LLA violations would be made and the owner apologized.
Artur Balaga is an officer with Toronto Police Services. He attended the premises, in plain clothes, on February 14, 2010 at 3:00 a.m., for an inspection, resulting from Officer Kennedy’s report.
As he entered he heard music playing and observed 6 patrons holding wine glasses and a bottle of Yellowtail Merlot wine that was half full and 2 empty Heineken bottles on their table.
He approached the service bar, with the Licensee, Mr. Nana and asked the bartender for his I.D. He was shown a Smart Serve Certificate in the name of A.O.
Officer Balaga advised the owner of the liquor violations including signs of service and consumption and indicated that he would return to formally lay charges. He requested that all patrons leave the premises.
Registrar’s Submissions
Both witnesses provided credible and consistent evidence regarding section 29. Officer Kennedy testified that on February 6, 2010 he saw approximately 20 patrons in the premises at 4:52 a.m. Officer Balaga testified that on February 14, 2010 at 3:00 a.m. he found 6 patrons consuming wine with a half full bottle of wine on their table.
Both officers spoke to the Licensee about the infractions, who apologized to them.
The Registrar asked for findings under section 29 of O.Reg 719/90 for breaches on February 6 and 14 and asked that the Board uphold the monetary penalty of $3000.
Reasons and Analysis
The Board accepted the testimony of both officers as credible evidence.
When Officer Kennedy attended on February 6 at 4:29 a.m. as a result of a complaint, approximately 20 patrons appeared to be consuming alcohol and he noted 3 intoxicated patrons in the basement. No attempt by the Licensee was being made to close the premises.
Since the Licensee was not present at the hearing there was no contradictory evidence presented.
Therefore, the Board FINDS that on February 6, 2010 the Licensee breached section 29 of O.Reg 719/90.
When Officer Balaga attended on February 14, 2010 at 3:00 a.m. he noted that there were still 6 patrons present drinking wine at a table with a half bottle of wine. No attempt was being made by the Licensee to clear the signs of service either from the table or from the service bar. No evidence to the contrary was presented by the Licensee at the hearing.
Therefore, based on the evidence, the Board FINDS two breaches of section 29 of O.Reg 719/90.
Conclusion
- For the reasons given, the Board UPHOLDS the alleged violations contained in OMP number 237, issued to Café Roger Milla Inc., operating as CAFÉ ROGER MILLA, 999 Albion Road, Toronto, Ontario, M9V 1A6, liquor licence number 813696 and CONFIRMS the monetary penalties sought by the Registrar in the amount of $3000.
DATED AT TORONTO THIS 28 DAY OF October , 2010
ALLAN HIGDON, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER