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-
The Deck Inc., Licensee operating as Deck Pub & Grill (The) Licensee
DECISION on findings
Panel: David C. Gavsie, Chair, AGCO Jacqueline Castel, Board Member
Decision Date: November 1, 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
The Deck Inc., Licensee ) Robert Isles, Representative
Allegations
- A hearing into Notice of Proposal (“NOP”) number 18152 dated June 21, 2010 to suspend liquor licence number 801597 (the “licence”) issued to The Deck Inc. (the “Licensee”), operating as DECK PUB AND GRILL (THE), 34 Mill Street, Orangeville, Ontario, L9W 2M3, (the “establishment” or the “premises”), on the basis of an alleged violation of subsection 34(1) of Ontario Regulation 719/90 (the “O.Reg.”), prescribed under the Liquor Licence Act (the “LLA”), was held in the City of Toronto on October 4, 2010.
Decision
- The Board DISMISSES the allegations under subsection 34(1) of the O.Reg. Reasons follow.
Preliminary Matters
- Mr. Isles indicated that he would like for one of his witnesses, Mr. Andy Kostdrowski, to be able to refer to notes he made immediately after the incident, to refresh his memory when giving testimony, but informed that he only disclosed the notes to Ms Khan a few minutes prior to the hearing. The Board recessed until 10 a.m. to allow Ms Khan to review the notes and consult with her client. After the 30 minute recess, Ms Khan advised that she would not object to Mr. Kostdrowski referring to his notes to refresh his memory when giving testimony, notwithstanding that Mr. Isles did not comply with the Board’s Rules of Practice respecting disclosure.
Registrar’s Evidence
Alcohol and Gaming Commission of Ontario (“AGCO”) Inspector Stacy Guymer, attended the establishment with Police Constable (“P.C.”) May, of the Orangeville Police Service, on February 18, 2010.
Ms Khan filed six black and white photographs of the exterior of the establishment, which the Board entered as Exhibit 1.
Inspector Guymer testified that P.C. May drew her attention to a male patron who was on the patio consuming from a glass. It looked like the glass contained draft beer. The liquid was golden and had foam at the top. The patron was also smoking a cigarette. Inspector Guymer knew that the portion of the patio where he was standing was not covered by the liquor licence because of a prior investigation she conducted.
Inspector Guymer observed the male put his glass on the railing, which she pointed out on page 4 of Exhibit 1.
Inspector Guymer approached the male and told him he could not bring alcohol in this area of the deck. The male apologized to her several times and said that he did not want to get the owner, Tim, in trouble.
Mr. Andrew Kostdrowski, an employee at the establishment, exited the sliding glass doors leading to the kitchen. He appeared angry. He threw a table in front of the stairs leading to the unlicensed portion of the patio where the male had been consuming a beer. Inspector Guymer advised Mr. Kostdrowski that patrons cannot consume liquor in the unlicensed area of the deck. He said he did not know this portion of the deck was unlicensed and asked whether it was acceptable to have a table in front of the area, blocking patrons from entering. She told him that it would be fine to have a table in this location. She did not identify herself to Mr. Kostdrowski because he knew her from previous dealings at the establishment.
Next, Inspector Guymer entered the establishment with P.C. May, and spoke with Ms Stephanie Cliche who was bartending. She advised Ms Cliche of the infraction. Like Mr. Kostdrowski, Ms Cliche told her she thought that area of the deck was covered by the liquor licence.
The establishment was not busy on the night in question. There were approximately five patrons in the establishment.
Ms Cliche had a full view of the exits of the establishment from where she was standing behind the bar.
Inspector Guymer initially testified that she departed the establishment at 21:38, but on cross-examination she indicated that she had made a mistake and that she actually departed at 20:38.
Inspector Guymer indicated that the establishment has an outdoor patio which is licensed from May to September. The area where she observed the patron consuming a beer was in a different area that does not have a seasonal licence.
On cross-examination, Inspector Guymer said that she met P.C. May at another establishment at 7:30 p.m. They arrived at the establishment in separate vehicles at 8:32 p.m.
They parked their vehicles on Mill Street. While at the establishment, she and P.C. May remained together. They may have been a few feet apart at times, but they were always in the same general vicinity.
Inspector Guymer initially said she could not recall when she took the six photographs. When questioned further on this point, she indicated that she took the photographs during the course of her investigation, at some point after P.C. May drew her attention to the male consuming beer in an unlicensed area. Subsequently, she indicated that she would have taken the photographs before she entered the premises. She does not know the identity of the male in the photographs (pictures 1, 2 & 3 of Exhibit 1).
She could not recall the date of the prior investigation relating to the alleged unlicensed portion of the patio.
The male was already on the lower deck when P.C. May pointed him out to her. At this time, she was in the front of