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-
1780612 Ontario Inc. operating as B&B Restaurant Licensee
DECISION
Panel: Kirsti Hunt, Vice-Chair Joan Lougheed, Board Member
Decision Date: September 7, 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 ) Lorenzo Policelli, Representative 1780612 Ontario Inc., Licensee ) Sonia Campbell, Representative
Allegations
- A hearing into the appeal of Order of Monetary Penalty (“OMP”) number 273 dated November 1, 2010, issued to 1780612 Ontario Inc. (the “Licensee”), operating as B&B RESTAURANT, 1559B Eglinton Avenue West, Toronto, Ontario, M6E 2G9, (the “establishment” or the “premises”), liquor licence number 20781, 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 and subsection 25(1) of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (the “LLA”), was held on May 17, 2010 in the City of Toronto.
Decision
- After considering all the evidence and submissions, the Board DISMISSES the allegation of a violation of subsection 25(1) of the O.Reg. The Board UPHOLDS the alleged violation of section 29 of the O.Reg contained in the OMP and CONFIRMS the monetary penalty sought by the Registrar. Reasons follow.
Preliminary Matters/ Issues
- As a preliminary matter and on consent of all parties, the Board ORDERED the exclusion of witnesses.
Registrar’s Witnesses
Jeff Taylor, Police Constable (“PC”), 13 Division, Community Response Unit, Toronto Police Services, was working in plain clothes on March 6, 2010 with PC Griffith. At 3:20 a.m., they noted interior lights on at B&B Restaurant. They parked on the north side of the street across from the bar, and were in an unmarked vehicle.
Window blinds were turned in such a way that four males were observed at the service bar, which is about 25 to 30 feet from the window.
PC Taylor was able to observe two males drinking from open bottles of Heineken beer. He stated that this was a brief observation. It appeared to him that patrons had looked out the window and had seen the police officers and vehicle. At this time PC Taylor decided to move the vehicle. PC Taylor stated that they drove a short distance to turn around and park their vehicle just west of the premises on the south side (the same side as the establishment).
On approaching the premises, he observed that the window blinds were now closed and the door was found to be locked. He stated he was still able to see into the establishment through the vertical blinds.
When he positioned himself to see inside, he observed the two males with open bottles of Heineken. He noted that Heineken has a distinctive bottle. It is smaller than a normal bottle, it is green in colour and has a unique label.
PC Taylor knocked on the door, displaying his badge. One male was seen to quickly place the beer bottles to the rear of the service bar. Another male was seen to move to the rear, out of sight.
A female came to the door and opened it. He went to the service bar and found two half full bottles of Heineken beer that were cold to the touch.
When PC Taylor asked for a food and liquor menu, the Licensee advised him that both were in a briefcase in his car. The Licensee said he would not leave the premise to get the requested items.
Mr. Campbell was notified of pending charges. The officers left the premises 12 to 13 minutes later, at 3:35 a.m.
On cross-examination, PC Taylor stated that he has been a police officer for over 30 years. His notes were done after the investigation, prior to 5:30 a.m. He stated that he and PC Griffiths had a discussion in the restaurant and afterwards, for clarification purposes. He stated that his notes were done independently.
In response to questions, he stated that he was driving and therefore was closest to the restaurant. They were parked on the north side for 30 seconds to less than a minute. He stated that it was enough time to make his observations of the inside of the restaurant.
PC Taylor stated that he was parked on a four-lane street, which would be about 55 feet to the front door and about 85 feet to the bar at the back of the restaurant. He did not require binoculars to make his observation.
The witness did not make notes of the four persons in the bar regarding whether they were seated or standing, or of their physical features. He did not note any details about the female who answered the door. On entering he checked for the two beer bottles and said he did not feel it was necessary to check elsewhere.
PC Taylor confirmed again that he observed one to four of the persons inside turn to look at them. He felt that one or more looked and saw him outside.
He stated that that police are easily recognized because they drive the same car all the time. He did not recall the type of unmarked vehicle used that night, but stated that he often drove a black Malibu. He stated that only the small interior vehicle lights were on. He stated that this is not a bright light, but enough light to be seen.
PC Taylor has been to the establishment for other inspections and found them to be compliant. He had been in previously to introduce himself.
PC Taylor stated that they did not park in front of the establishment to avoid alerting the people inside of their presence, taking a chance that they would still be drinking, even though they saw them. He stated that it took about a minute to turn around from the north side of the street to the south side, by the restaurant.
The witness confirmed that the blinds were angled in a way so that he could see when they were parked across the street, and that they were closed when they came back. When at the door of the establishment, he noted that the interior lights were off and the bar/kitchen lights were on. He stated that there would have been a crack or gap in the blinds, allowing him to see inside.
It took about 20 to 30 seconds for someone to open the door. He did not recall specifics of any interaction with anyone in the bar, stating that any conversation would have been routine. PC Taylor did recall that someone mentioned they were having a meeting. He did not see anyone in the kitchen and did not know where the female was at this time.
PC Justina Griffiths stated that she was working in plain clothes with PC Taylor on March 6, 2010 and arrived at the B&B Restaurant at 3:20 a.m. They stopped on the north side of the street, across from the premises, when lights were seen on inside the premises.
PC Griffiths observed four males standing by the service bar area and a female behind the bar. She saw two males drinking from Heineken beer bottles.
She stated that after five to 10 seconds, it appeared that the male patrons looked out the window and saw them. They decided to move the vehicle and to come back from another direction, park and do a liquor inspection of the establishment. They parked on the south side, just east of the establishment. It took about one minute to move the vehicle, park and go to the entrance of the premises.
PC Griffiths stated that as she got out of the vehicle, she noted that the Venetian blinds were closed and turned on an angle. It would be difficult to see in if walking by, but she could still see in the window. PC Taylor knocked on the locked door and she could see four patrons at the bar and two Heineken bottles on the bar.
A female opened the door. The four males were still at the bar, but the bottles were not on top of the bar. PC Griffiths stated that PC Taylor said someone else had gone downstairs. She noted that there were three males and one female in the establishment at this time. She obtained information from the bartender but did not identify the males at the counter. The males were co-operative and did not get involved.
PC Griffiths located the bottles behind the bar on the counter. The bottles were half full and cold to touch. She also noted that these bottles were next to some Guinness bottles. She did not touch them or observe if there was anything in them.
PC Griffiths stated that they were in the establishment for about 10 to 12 minutes.
On cross-examination, PC Griffiths confirmed that she was a passenger in the police vehicle. When the vehicle was parked on the north side of the street, it was directly in front of the restaurant. She had a clear view to observe four males; one male was sitting. She did not see anyone with a beer in their hand but recalled one male picking up a bottle. She saw a few of the patrons turning and they appeared to look outside, directly at them.
When the female opened the door, there were three males at the bar. The female went behind the bar to get her identification. PC Griffiths did not recall where PC Taylor was at that time.
PC Griffiths stated that she made her notes before they booked off their shift. She and PC Taylor shared specific times, names and did their notes sitting together.
Licensee’s Witnesses
Merkita Joseph was a bartender at the establishment until she left due to her pregnancy.
Ms Joseph stated that on March 6, 2010 she was four months pregnant. She was having a “heated discussion” with the Licensee about her customer service and the manner in which she was approaching customers. She stated she was very moody with the pregnancy.
At 2:00 a.m., she served the last round before cleaning up and closing the cash. Her boyfriend was in the bar to pick her up and was waiting for her to finish.
Ms Joseph stated that she finished cashing out, took her handbag and went to sit in front of the bar, waiting to finish the discussion.
She had turned off the lights, locked the door and closed the blinds. Shortly after she heard a knock at the door and one man went to open the door to let the police in.
The female officer approached Ms Joseph asking if everything was alright. Ms Joseph told her that they were just having a discussion amongst themselves. The male officer was behind the bar, asking Mr. Campbell for his identification, the liquor menu and other things to do with the bar.
Ms Joseph stated that the male officer, at one point, told Mr. Campbell that he was drunk and did not want to speak with him. Ms Joseph stated that she did not think he was drunk, and that he was probably upset with her.
Ms Joseph stated that the people in the bar included herself, the Licensee, her boyfriend, the owner of the restaurant adjacent to B&B Restaurant and a gentleman who lived upstairs. The meeting started before 1:30 a.m. and lasted about 30 minutes. They all had a drink at the time. Her boyfriend had a Heineken. At the time, there would have been shot glasses and a beer bottle on the bar.
She stated that sometime after 2:30 a.m., her boyfriend finished his beer; she removed it and placed it on the lower bar. The other glasses would have been cleared away.
Ms Joseph stated that she did not see the police officer pick up anything behind the bar. The male officer asked if they were drinking. She stated that the bottle behind the bar was empty and that there were no half full bottles behind the counter. The normal practice at the establishment is to end service at 2:00 a.m. and clear by 2:30 a.m.
On cross-examination, Ms Joseph stated that the discussion had gone on past 2:30 a.m. She described the discussion as an altercation.
Ms Joseph stated that a bottle of beer could still be cold after being out of the fridge for a half hour. She stated that she cleared everything, and that there would not have been a half bottle of beer behind the counter. Cleared bottles go in a box beside the fridge.
Ms Joseph confirmed that the meeting started at 1:00 a.m. and concluded at 3:00 a.m., ending after the police visit.
The witness stated that she was not asked for identification or a Smart Serve certificate; only Mr. Campbell was asked.
Joseph Campbell is 71 years of age and has been the owner of B&B Restaurant since October 2008. On March 6, 2010 he spoke with the bartender. The bartender was pregnant and being miserable, making mistakes with customers. He stated that they spoke for a lengthy period of time.
Mr. Campbell stated that the bartender’s boyfriend had a beer sometime between 1:20 a.m. and 1:30 a.m. At 2:00 a.m., when others were present for the meeting, he asked Ms Joseph to serve a drink to everyone present. Mr. Campbell had a cognac and Ms Joseph’s boyfriend had a Heineken. He did not recall what the others ordered.
Mr. Campbell said that the boyfriend finished his beer around 2:30 a.m. as they were ready to leave. He did not know where Ms Joseph put the bottle, but said that normally the bottles would be in a box beside the bar.
He noted that his times are approximate, since he did not make specific notes of the hour at the time.
Mr. Campbell stated that while in conversation, someone said there was a knock at the door and that it must be the police since no one else would knock at that time of night. He told a male attending the meeting to open the door.
Mr. Campbell stated that the male police officer went directly behind the bar. The beer bottle would have been in the sink area on the lower shelf of the bar.
Mr. Campbell testified that he was standing at the door to the kitchen which is near the staircase. He immediately went in front of the cash register, next to the male officer.
The witness stated that he told the officer he was the proprietor. When asked for identification, he showed his Smart Serve certificate. The officer told him he was taking too long and said he wanted a driver’s licence. The Licensee said he became nervous when the officer told him he was drunk, repeating this statement. It took time to get the licence since he has a lot of cards in his wallet.
Mr. Campbell said that food menus are on every table. He told the officer that the liquor menu was in his briefcase in his car He had the items in his briefcase to be updated.
The police officer told him to get it and Mr. Campbell said he was not leaving while the police officer was behind the bar in his restaurant.
The Licensee stated that the female officer did not speak during this time. He asked the male officer why he was being rude and the officer left saying that he would be notifying the liquor board.
Mr. Campbell stated that the officers were not in uniform. One of the males attending the meeting told him that he had seen the police badges.
Mr. Campbell stated that he had a beer around 4:30 p.m. and did not drink anything else until he had the cognac. He stated that his hands shake as a result of a permanent injury.
On cross-examination, Mr. Campbell stated that the police came in around 2:50 a.m. and stayed for about half an hour. When the police knocked he told someone to get the door since he did not want to be caught smoking in the restaurant.
Mr Campbell stated problems started when the officer called him a drunk. He resented the statement. He stated that there was one beer bottle at the service bar. He said that when patrons buy Heineken, they make sure they drink it.
Analysis/Reasons/Findings
In the matter of monetary penalties, the Board, after a hearing, can only dismiss the allegation or uphold the penalty.
The Board does not have the authority to amend the dollar amount of the penalty.
The Board has carefully reviewed and considered the evidence and submissions of both parties in this matter.
The Board, in reviewing all the evidence from witnesses, believes that all the times stated are approximate although generally consistent. The Licensee’s witnesses did not make specific notes of the events of the evening and the police officers stated that they did not complete their notes until the end of their shift. PC Griffiths stated that, while sitting together, they discussed details of the inspection and made their notes together at the station, prior to the end of shift. The Board believes that, based on all the evidence, there can only be a determination that the officers arrived sometime after 2:45 a.m.
The Board dismisses the suggestion of the Licensee’s Counsel that the Licensee was serving a non alcoholic drink called “Ting”, which is bottled in a green bottle. No evidence was ever presented by the witnesses supporting this notion. In fact, the Board heard direct evidence from the Licensee’s witnesses that a last round of alcoholic beverages was served to those in attendance for the meeting.
Re: Subsection 25(1) of the O.Reg
The Board has consistently taken a position that the service and consumption of alcohol outside the prescribed hours is a serious concern.
The Board accepts the evidence that the only people inside the premises when the officers arrived were those who were in attendance for the special meeting which started around 2:00 a.m.
Ms Joseph is no longer employed at the establishment and has no bias in giving her evidence. She was direct and forthright about the issues being discussed at the meeting stating that the meeting was directly related to her employment performance/customer service. The Board finds her evidence credible, recalling drinks she served as the last round, at approximately 2:00 a.m. She stated that she served those attending the meeting and her boyfriend, who was waiting to pick her up after work.
She stated that she had closed the blinds, locked the doors and cashed out, just prior to the police officers arriving. She was sitting at the bar with her handbag, preparing to go home at the conclusion of the meeting.
The police officers stated that, when parked across the street, they observed two beer bottles on the bar. They did not see alcohol being served, payment being made nor did they see patrons drinking from the bottles on the bar.
On a balance of probabilities, the Board cannot make a determination that there was sales or service of alcohol outside the prescribed hours and DISMISSES this allegation against the Licensee.
Re: Section 29 of the O.Reg
The Board must make a determination on whether, through the evidence, liquor served and consumed on the premises was removed within 45 minutes after the end of the period during which liquor may be sold and served.
The Board must also respond to the allegation in the Order of Monetary Penalty that a server removed and tried to conceal beer bottles behind the bar.
The Board heard in evidence that the officers were not in uniform and were working after dark in an unmarked vehicle. When parked across the street, they observed people inside the establishment and saw two bottles of Heineken beer on the bar. In evidence, the Board heard from PC Taylor that only the bar and kitchen lights were on. Although an outline of a bottle may have been visible on the bar, the Board questions the ability of anyone to clearly see the colour of a beer bottle and a specific label of a bottle with reduced lighting and from a distance of 85 feet.
PC Taylor indicated that, when stopping across the street from the establishment, the only lighting in the area was the low interior lights of the vehicle.
He stated that they were parked less than 30 seconds on the north side of a four lane street at a distance of approximately 55 feet to the front door or 85 feet to the bar at the back of the establishment.
Although one or more of the patrons may have looked toward the street in those few seconds, the Board finds it difficult to accept that patrons were able to identify a dark unmarked vehicle and the plain clothed persons as police officers and took steps to remove and conceal signs of service.
In evidence, PCs Taylor and Griffiths stated that they turned around, purposefully parked beyond the door of the establishment and knocked within a minute. Someone opened the door 20 to 30 seconds after they knocked. Again, the Board finds that the timeframes were very close and there was not a significant delay in answering the door which might otherwise have indicated that time was needed to conceal or remove signs of service and dismisses any suggestion of concealment.
The evidence was inconclusive and the Board declines to make a finding relating to concealment.
The Board must still address the matter of removing signs of service within the prescribed times.
The Board accepts the evidence of the police officers that they saw beer bottles on the bar when they parked across the street. The range of times given in evidence by the witnesses indicates that this would have been between 2:50 a.m. and 3:20 a.m. This would have been outside the prescribed times for clearing signs of service.
On entering the premises, the Officers went behind the bar and found beer bottles in the service counter area.
The Board accepts the evidence that the restaurant had closed, the owner and bartender, Ms Joseph, were cleaning up as a meeting was held with five people being present, to deal with a personnel matter.
Ms Joseph stated that there were ‘heated discussions,’ and given the issues being discussed, the meeting continued from 2:00 a.m., to the arrival of the police officers. The Licensee stated in evidence that the police officers arrived around 2:50 a.m. and the police officers stated they arrived at 3:20 a.m.
It is reasonable to accept that the people in attendance were present inside the premises after 2:45 a.m. and that the final signs of service, from the last round to the people in attendance was only cleared off the bar and placed on the service counter just prior to the arrival of the police officers, which was sometime between 2:50 a.m. and 3: 20 a.m.
The Board notes that the Licensee, himself, indicated in evidence that there could have been one bottle behind the bar. He stated that the bottle of Heineken would likely have been the beer consumed by Ms Joseph’s boyfriend. The Board accepts this reply.
On a balance of probabilities, the Board concludes that signs of service and consumption were not removed within the prescribed period of time. The Board FINDS the Licensee violated section 29 of the O.Reg.
Conclusion
- For the reasons given, the Board DISMISSES the allegation of a violation of subsection 25(1) of the O.Reg and UPHOLDS the alleged violation of section 29 of the O.Reg, contained in OMP number 273, issued to B&B Restaurant at 1559B Eglinton Avenue West, Toronto, Ontario, M6E 2G9, liquor licence number 20781 and CONFIRMS the monetary penalty sought by the Registrar in the amount of $ 300.
DATED AT TORONTO THIS 7th DAY OF September , 2011
KIRSTI HUNT, VICE-CHAIR JOAN LOUGHEED, BOARD MEMBER