Registrar, Alcohol and Gaming Commission of Ontario v. Pemican Bar and Grill Inc., 2010 CanLII 81328

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-

Pemican Bar and Grill Inc., operating as or intending to operate as Pemican Bar & Grill

Applicant

DECISION

Panel: Allan Higdon, Board Member Eleanor Meslin, Board Member

Decision Date: October 7, 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 ) Luisa Ritacca, Representative Pemican Bar & Grill Inc., Applicant ) Ricardo Rowe, Representative ) Fitzgerald Patrick, Applicant

The Allegations

1. A Hearing into Notice of Proposal number 18084 dated May 20, 2010 to refuse to renew liquor licence number 801300 issued to Pemican Bar & Grill Inc. (the “Licensee”), operating as PEMICAN BAR & GRILL, 1695 Jane Street, North York, Ontario, M9N 2S3 (the “establishment” or “premises”), on the basis that the Licensee would be disentitled to a licence under clause 6(2)(d) and 6(2)(f) of the Liquor Licence Act (the “LLA”). A hearing of the Application was held on July 19 and July 30, 2010, in the City of Toronto.

Decision

2. The Board REFUSES to renew the liquor licence for Pemican Bar & Grill. Reasons follow.

Preliminary Matters

3. The hearing of July 19, 2010 was adjourned on consent, due to a medical emergency of one of the Licensee’s witnesses. The next hearing date was set for July 30, 2010 peremptive on the Licensee.

4. Before proceeding, Ms Ritacca presented a Registrar’s Book of Documents as Exhibit 1.

Registrar’s Evidence

5. Clay Martin is a Detective Constable assigned to the Alcohol and Gaming Commission of Ontario (“AGCO”) in Enforcement.

6. On December 16, 2009 he received a request to conduct an investigation at the premises to determine the true ownership of the establishment because of concerns by AGCO Inspector L. McDougal who had difficulty serving a placard to the Licensee.

7. The Inspector told him that she had called a meeting on November 5, 2009 to discuss a possible suspension plan with Mr. Patrick, Detective St. Jean of the Toronto Police Services, Sergeant (“Sgt.”) Andrew Pierre, his supervisor, Ricardo Rowe, Mr. Patrick’s agent and Don Bourgeois, counsel at the AGCO. The result of the meeting was that Mr. Rowe was advised that a suspension placard must be posted immediately and remain during the suspension.

8. On November 6, 2009, Inspector McDougal attended the premises and found the placard had not been posted. She attended again on November 9 and November 17 and found it posted, but partially obscured.

9. In Officer Martin’s later discussions with Sgt. Pierre and Inspector McDougal, he was advised that two different owners were registered in the master file – Fitzgerald Patrick and Junior Beckford.

10. He then conducted a series of interviews on the following dates:

February 3, 2009 with Fitzgerald Patrick February 9, 2009 with Linda Karunarathnalage, Landlord March 5, 2009 with Catherine Buhagiar, a sales representative of TD Canada Trust March 19, 2009 with Junior Beckford, Part Owner March 30, 2009 with Barrington Johnson April 5, 2009 with Ricardo Rowe April 7, 2009 with Leon Anderson, Investor

11. At the March 19 meeting, Mr. Beckford stated that in 2007 he and Mr. Patrick were friends and decided to start a business together. He indicated that since 2009 Mr. Beckford has had nothing to do with the operation of the business, although AGCO records still list him as a Director.

12. In the interview with the landlord, Ms Karunarathnalage, she stated that she had been the landlord for the past nine years and had previously owned a licensed establishment on the premises. She said that Pemican had been there for the past three years. She advised that there was currently $49,000 owing for rent, water, hydro, property tax, and unpaid Goods and Services Tax (“GST”).

13. She gave Officer Martin three leases; the first signed by Patrick and Beckford on May 1, 2007, the second signed by Patrick, Beckford, Anderson and Johnson on December 31, 2007 and the third listed only Beckford as the sole tenant, dated September 18, 2009.

14. Because of the December 31, 2007 lease, Officer Martin interviewed Mr. Johnson on March 30, 2010. Johnson stated that he had invested $8,000 as start up money but he was never employed at Pemican, nor did he ever receive any compensation. He had helped out for about three weeks during September 2009, but had not attended the bar since October 2009. He said that he had also rented some large fans for the establishment at $785 per month. He is not listed in any AGCO Personal History reports.

15. On April 7, 2009, Officer Martin interviewed Leon Anderson. He stated that he had invested $5,000 to help start the business. He was a part-time chef at the bar until November 2008, but had never received any compensation. He also has no Personal History Report with the AGCO.

16. Fitzgerald Patrick was interviewed on February 3, 2010 and stated he had signing authority for Pemican’s account at Canada Trust and that the account had overdraft protection. He indicated that he made monthly GST payments.

17. He said that he and Beckford were friends and had opened the bar together in September 2007, and that Beckford’s friends Anderson and Johnson were brought in to help run it. Both he and Beckford signed the lease in September 2007. Patrick stated that he had borrowed money from an uncle in Jamaica to cover the costs of opening.

18. Officer Martin had a criminal background check done on Mr. Patrick (Exhibit 2). Mr. Rowe objected to the exhibit on grounds that the criminal charges have not been decided by the courts and are prejudicial to Mr. Patrick. Ms Ritacca responded that it is appropriate for the AGCO to consider these matters in an application for licence renewal and Mr. Patrick had already listed the charges on his renewal application form. The Board agreed to accept the exhibit and give it the appropriate weight in deciding on the application.

19. In response to Officer Martin’s questions about the charges, Mr. Patrick indicated he had been arrested and held for five days, and that he had no previous criminal convictions.

20. Officer Martin spoke to M. Brunet, of the Hamilton/ Niagara RCMP, who had filed the charges and received a synopsis on August 27, 2009. Mr. Rowe objected to this information going before the Board and Ms. Ritacca pointed out that they were relevant since the Board had to consider past and present conduct in its decision. The Board overruled the objection indicating it does not judge guilt or innocence, it only looks at the charges as they relate to past conduct.

21. On the issue of true ownership, Officer Martin testified that his investigation revealed that Mr. Patrick was the true owner, although he still had questions about Mr. Beckford’s connection. The AS 400 had revealed that Mr. Beckford was a 25 per cent shareholder and had significant authority over the business chequing account. To remove him as a shareholder, a transfer form (Form 1) should have been completed. This had not been done.

22. Officer Martin indicated that Mr. Rowe had been advised by Mr. Bourgeois to submit a transfer form. The officer did not know if the form had been filed. As to the charges, the court date has been set for December 14 and 15, 2010.

23. In response to Mr. Rowe’s questions, Officer Martin agreed that Mr. Patrick told him that Mr. Beckford had promised to provide funds, but had never done so. He stated that Mr. Patrick was responsible for the day-to-day operation. The reason Mr. Beckford had not been involved was because he and Mr. Patrick had a number of disagreements and Mr. Patrick feared for his safety from Mr. Beckford. Officer Martin stated that Mr. Patrick told him that the landlord had contacted Mr. Beckford while Mr. Patrick was in jail and on Mr. Patrick’s return he found the doors locked. When he contacted the landlord to gain access, he was told that he owed $49,000, although, he believed, the amount was only $34,000.. He refused to pay and was confronted by Beckford, Anderson and Johnson and told to stay away from the bar. On September 18, 2009, a new lease had been drafted in Beckford’s name only. Patrick told Officer Martin that he then sought legal help and received a court order on October 23, 2009 granting him immediate access. The landlord was ordered to change the locks and allow Patrick entry. She was also given conditions by the court that she could only attend at the premises to read the meters and address any issues of the third floor tenant.

24. To questions about the February 9, 2010 interview with the landlord, Officer Martin replied that she said Mr. Patrick owed $49,000 and that her lawyer had advised her to lock out Mr. Patrick. She told the officer that she did not want Mr. Patrick as a tenant and that she had asked Mr. Beckford to run the bar.

25. Regarding Mr. Beckford’s interview of March 19, 2010, Officer Martin stated that he had previously cautioned Mr. Beckford for obstruction and mischief and that Mr. Beckford told him he’d had nothing to do with the bar since October 2009. He had walked away in 2008, but entered a lease agreement in 2009.

26. In the Officer’s telephone interview with Mr. Anderson, he was told by Mr. Anderson that he had put up $5,000 to start-up the bar, but provided no documents to indicate this fact.

27. When Officer Martin met with Mr. Rowe, he was told that the Form 1 notice of transfer had been filed to remove Mr. Beckford but was not processed. Another Form 1 had since been filed.

28. In response to questions about a second lock-out, and a subsequent court order, Officer Martin did not recall seeing the order.

29. Regarding the suspensions, he did not know who was running the establishment at those times.

Licensee’s Evidence

30. Fitzgerald Patrick is a director of the licensed establishment. He testified that on August 29, 2008, the first suspension date, Mr. Beckford, Anderson, Johnson and himself were all operating the bar on a day-to-day basis.

31. On the other three suspension dates: April 15, 2009, August 20, 2009, and October 9, 2009, he was operating the establishment on his own.

32. He stated that he had taken responsibility and signed off on all four suspensions by himself, and has complied with all the terms. Since October 2009, there have been no further violations.

33. In response to Ms Ritacca’s questions, Mr. Patrick agreed with all the dates and charges of the suspensions.

34. Mr. Patrick also stated that Mr. Beckford had brought in Mr. Anderson and Mr. Johnson and all four had agreed to open a bar together. If he could fund the start-up, the others would then contribute additional funds. But once it was open the other three did not contribute any funds, they only helped manage it.

35. Mr. Patrick testified that he had caught Mr. Anderson stealing and ordered him to leave. Both Mr. Johnson and Mr. Beckford stayed on, but later Beckford said he wanted to withdraw. Mr. Patrick did not remove his name from the lease until a later date.

36. At the time he was in custody, Mr. Beckford, Mr. Johnson and Mr. Anderson went to the landlord, paid her $2,000 as rent each night, and had her draw up a new lease without Patrick’s name on it. On his release, when he applied for a licence renewal, he was told he was not named on the lease.

37. When asked about a violation in January 2010, Mr. Patrick said he did not recall it.

Submissions

38. Since the Board received written submissions from the parties, it will not reiterate them here.

Reasons and Analysis

39. The Board has thoroughly reviewed the evidence and submissions.

40. The Licensee has alleged that because of the outstanding criminal charges against Mr. Patrick, the Registrar is barred from taking any actions with respect to past breaches of the LLA and cites both the Provincial Offences Act and the Charter of Rights.

41. The Registrar did not ask, nor is the Board authorized, to find criminal liability. This hearing relates to liquor licensing issues not to criminal matters. Board hearings are regulatory in nature. Therefore, neither the Provincial Offences Act nor the Charter are of any significance in this matter.

42. The Board does not agree with the Licensee’s assertion that the Board cannot consider the Licensee’s history. Considering whether the licence should be renewed due to a purported limitation period set out in the Provincial Offences Act clause 6(2)(d) of the LLA expressly mentions the “past and present conduct “ of the Licensee.

43. The issue before this Board is to decide given the Licensee’s past or present conduct whether there are reasonable grounds for the belief that Pemican would not carry on business in accordance with the law and with honesty and integrity.

44. The Board does not accept the Registrar’s submission that the fact that Mr. Patrick has been charged with a number of criminal offences is in and of itself sufficient to refuse the renewal application.

45. Since Mr. Patrick has, as owner, accepted responsibility for the LLA violations, whether a number of other individuals were at one time or another involved in Pemican is not central to the determination of the issue of renewal of the licence in these proceedings.

46. However, the Board is deeply concerned about the multiple overcrowding as well as other violations over the course of a year. The Board agrees with the Registrar that overcrowding in particular is a serious public safety matter. The fact that Mr. Patrick consistently ignored or deliberately refused to remedy this situation indicates a wanton disregard for public safety and the LLA and regulations.

47. The Licensee’s past conduct of multiple breaches of the LLA and regulations within a brief period after receiving its licence and within a one year period is a clear indication to the Board that the Licensee is ungovernable. The fact that current criminal charges are serious matters, although not yet proven in court, is relevant. The Board believes that on a balance of probabilities it is further indication of the Licensee’s lack of honesty and integrity.

48. The Board declines to “strike” or dismiss the proceeding as proposed by the Licensee. The Board also declines to recuse itself, and notes that this request was raised only during the Licensee’s submissions and without any clear grounds for doing so.

49. Therefore, the Board FINDS that there are reasonable grounds for the belief that Pemican will not carry on business in accordance with the law and with honesty and integrity and REFUSES to renew liquor licence number 801300 issued to Pemican Bar & Grill, operating as Pemican Bar & Grill, 1695 Jane Street, North York, Ontario, M9N 2S3.

DATED AT TORONTO, THIS 7 day of OCTOBER , 2010.

ALLAN HIGDON, BOARD MEMBER ELEANOR MESLIN, BOARD MEMBER