Registrar, Alcohol and Gaming Commission of Ontario v. 2168561 Ontario Inc., 2011 CanLII 19772

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-

2168561 Ontario Inc. operating as Music Box 8 Licensee

Panel: Patricia McQuaid, Vice-Chair, AGCO Bruce S. Miller, Board Member

Decision Date: March 8, 2011 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 ) Richard Kulis, Representative 2168561 Ontario Inc., Licensee ) Jerry Levitan, Representative

1A hearing into Amended Notice of Proposal (“NOP”) number 18371 dated October 28, 2010 to revoke a liquor licence and an Order dated October 25, 2010 to immediately suspend on an interim basis liquor licence number 203446 (the “Licence”), issued to 2168561 Ontario Inc. (the “Licensee”), operating as MUSIC BOX 8, 3477 Kennedy Road, Scarborough, Ontario, M1V 3Z7, on the basis of alleged violations of section 6 and subsections 45(1) and 45(2) of the Liquor Licence Act (the “LLA”) and sections 29 and 45.2, and subsections 17(2), 20(1), 25(1) and 45(1) of Ontario Regulation 719/90 (the “O.Reg”), made pursuant to the LLA, was held on November 3, November 5 and December 4, 2010 and February 15 and March 2, 2011 in the City of Toronto.

2Mr. Kulis and Mr. Levitan submitted an Agreed Statement of Facts (Exhibit #8) and Joint Submission on Disposition (Exhibit #9) which form part of this decision. In the Agreed Statement of Facts, the parties stated their consent to amend NOP number 18371 to include matters which were not previously alleged, which amendment was accepted by the Board. It was agreed and admitted that:

On October 4, 2010 at 2:52 a.m. the signs of the service and consumption of liquor were not cleared from the licensed premises. No person was in charge of the licensed premises at this time as the manager had gone home.
On October 24, 2010, several drunken patrons were in the licensed premises. Some of these drunken patrons fought with police while in the premises. Staff did not restrain the patrons during this altercation.
On October 17, 2010, a person who was not an employee or manager of the licensed premises was behind the liquor service bar. No person was in charge of the licensed premises at the time of the inspection.
On August 7, 2010 at 2:17 a.m., a server of the licensed premises served a pitcher of beer. Also at this time no person was in charge of the licensed premises.
On February 6, 2011 a drunken patron was found in the licensed premises. No person was in charge of the licensed premises during this inspection.

3Based on the Agreed Statement of Facts, the Board found the Licensee breached sections 29 and 45.2 and subsections 17(2), 25(1), 44(1) and 45(1) of the O.Reg. As well, the Licensee breached condition number 3 on its licence which states “The holder of the licence shall ensure that the premises is being managed by the individual(s) approved by the Registrar of Alcohol and Gaming, and that such individual(s) are present at the licensed establishment at such times as are specified by the Registrar of Alcohol and Gaming.” The Board accepted the withdrawal of the remaining allegations.

Order

4Therefore, having considered the Joint Submission on Disposition and the fact that the Licensee was previously suspended for twenty-eight days under the Order of Immediate Suspension, the Board confirms its oral ORDER that liquor licence number 203446 issued to 2168561 Ontario Inc., operating as MUSIC BOX 8, 3477 Kennedy Road, Scarborough, Ontario, M1V 3Z7, be SUSPENDED for TWENTY-EIGHT (28) consecutive days to COMMENCE at 11:00 a.m. on May 7, 2011, and CONTINUE until 2:00 a.m. on June 4, 2011.

5Further, the Board ORDERS that condition 4.b of the liquor licence be amended to read as follows:

Two licensed security guards shall be employed from 9:00 pm until the close of business on each day that the business is operating with one security guard positioned at the main entrance and the other security guard positioned inside the licensed premises.

DATED AT TORONTO THIS 8th DAY OF March, 2011.

PATRICIA MCQUAID, VICE-CHAIR BRUCE S. MILLER, BOARD MEMBER

Attached

IN THE MATTER OF THE LIQUOR LICENCE ACT R.S.O. 1990, chapter L.19, subsections 15(1) and 21(1)

AND IN THE MATTER OF THE LIQUOR LICENCE OF 2168561 ONTARIO INC. OPERATING AS MUSIC BOX 8 3477 KENNEDY ROAD, 2nd FLOOR, SCARBOROUGH LICENCE NUMBER 203446 NOTICE OF PROPOSAL 18371

AGREED STATEMENT OF FACTS

The Licence Holder, having consulted legal counsel, and the Registrar’s counsel agree to the following:

On October 4, 2010 at 2:52 a.m. the signs of the service and consumption of liquor were not cleared from the licensed premises. No person was in charge of the licensed premises at this time as the manager had gone home.
Based on the facts in paragraph 1, the licence holder admits to violations of section 29 (fail to clear) and subsection 17(2) (no person supervising) both of Ontario Regulation 719/90 under the Liquor Licence Act.
On October 24, 2010, several drunken patrons were in the licensed premises. Some of these drunken patrons fought with police while in the premises. Staff did not restrain the patrons during this altercation.
Based on the facts in paragraph 3, the licence holder admits to violations of subsection 45(1) (permit drunkenness and permit disorderly conduct) and section 45.2 (fail to maintain control) both of Ontario Regulation 719/90 under the Liquor Licence Act.
As part of this Agreement, the licence holder and Registrar’s counsel consent to the further amendment of this Notice of Proposal to include the matters outlined below and that the licence holder admits the following.

a. On October 17, 2010, a person who was not an employee or manager of the licensed premises was behind the liquor service bar. No person was in charge of the licensed premises at the time of the inspection. Based on these facts, the licence holder admits to violations of subsection 44(1) (unauthorized person behind bar) and subsection 17(2) (no person supervising) both of Ontario Regulation 719/90 under the Liquor Licence Act.

b. On August 7, 2010 at 2:17a.m., a server of the licensed premises served a pitcher of beer. Also at this time no person was in charge of the licensed premises. Based on these facts the licence holder admit to violations of subsection 25(1) (serve liquor after permitted hours) and subsection 17(2)(no person supervising) both of Ontario Regulation 719/90 under the Liquor Licence Act.

c. On February 6, 2011 a drunken patron was found in the licensed premises. No person was in charge of the licensed premises during this inspection. Based on these facts the licence holder admits to violations of subsection 45(1) (permit drunkenness) of Ontario Regulation 719/90 under the Liquor Licence Act and of licence condition number 3 which states that “The holder of the licence shall ensure that the premises is being managed by the individual(s) approved by the Registrar of Alcohol and Gaming, and that such individual(s) are present at the licensed establishment at such times as are specified by the Registrar of Alcohol and Gaming.

Joint Submission Regarding Disposition

The Licence Holder, having consulted with legal counsel and the Registrar’s counsel submit that the following disposition is appropriate in these circumstances:

In addition to the suspension period already served under the interim suspension and the conditions imposed at the time of the interim suspension was removed a further twenty-eight (28) day suspension of the liquor licence will be served.
That condition 4.b of the liquor licence be amended to read as follows.

“Two licensed security guards shall be employed from 9:00 pm until the close of business on each day that the business is operating with one security guard positioned at the main entrance and the other security guard positioned inside the licensed premises.”

Should the Board member make the findings as submitted and impose the disposition as recommended, then Registrar’s counsel will withdraw paragraphs 4(1) and 4(11)(b), (f) and (g) in Notice of Proposal 18371 dated October 28, 2010.

Dated at Toronto this 25th day of February, 2011

For the licence holder Richard E. Kulis

Pei Feng Li For the Registrar of Alcohol and

Gaming