Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-05-31
FILE:
7757, 7863, & 7870/LLA
CASE NAME:
7757, 7863 & 7870 v. Registrar of Alcohol and Gaming
Appeal from the Notice of Proposal of the Registrar of Alcohol and Gaming under the Liquor Licence Act, R.S.O. 1990, c. L. 19 - to Suspend a Licence
Femab Bar and Sport Entertainment Inc. o/a Femi’s Place
Applicant
-and-
Registrar of Alcohol and Gaming
Respondent
DECISION AND ORDER
ADJUDICATOR:
Mary Ann Spencer, Member
APPEARANCES:
For the Applicant:
Femi Abosede, Agent
For the Respondent:
Aviva Harari, Counsel
Heard in Toronto:
May 14, 2013
REASONS FOR DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act (the “Act”) issued Notices of Proposal, dated November 7, 2012, November 19, 2012 and November 28, 2012, which proposed to suspend a licence for fourteen, fourteen and thirty days respectively. Femab Bar and Sport Entertainment Inc. o/a Femi’s Place (the "Applicant") appealed these Notices of Proposal to the Licence Appeal Tribunal.
In summary, the grounds for the Proposals are as follows:
Proposals Dated November 7, 2012 and November 19, 2012:
The Applicant breached the conditions of its licence requiring that:
There be clearly visible and functioning security cameras which will be checked prior to opening each business day;
There will be one camera for each entrance and exit, and
The Licensee shall retain all digital records for a minimum of 30 days and make them available upon request to any law or AGCO liquor enforcement person upon request.
The Notice of Proposal dated November 19, 2012 further alleges that:
The Applicant breached the condition of its licence requiring that the CCTV system shall be suitable for night viewing and meet specific quality standards, and
Contrary to section 29 of O.Reg 719/90, the licence holder failed to clear the signs of service and consumption in the licensed premises within 45 minutes after the end of the period during which liquor may be sold and served.
Proposal Dated November 28, 2012
- Contrary to section 29 of O.Reg 719/90, the licence holder failed to clear the signs of service and consumption in the licensed premises within 45 minutes after the end of the period during which liquor may be sold and served.
On consent of the parties, the Tribunal ordered the exclusion of witnesses and the hearing proceeded.
EVIDENCE AND FACTS
Registrar’s Evidence
The evidence of the Registrar comprised the testimony of four witnesses.
Raman Sharma has been employed as an inspector by the Alcohol and Gaming Commission of Ontario (the “AGCO”) since March, 2012. Femi’s Place, located at 1812 Weston Road in Toronto, is in the area for which Inspector Sharma is responsible and he has inspected the premises on a number of occasions.
Inspector Sharma described the Applicant’s premises as having a single door on Weston Road with a small vestibule which leads to a second entry door. At the side of the entry is a small stage area and stairs leading to the basement and washrooms. The kitchen is at the back. There is a back entrance, also with two doors, which leads to parking.
On July 28, 2012, at 2:25 a.m., Inspector Sharma, accompanied by AGCO Inspector Josee McFadden and Ontario Provincial Police Sergeant Andrew Pierre, conducted what he described as a “routine” inspection of Femi’s Place. Inspector Sharma testified that while he observed a split video screen display with space for images from four cameras, the space for the front door camera displayed the words “video lost”. He spoke to Mr. Abosede who advised that the front door camera had been removed by police on March 24, 2012 during a police raid. However, Mr. Abosede was unable to provide a property receipt or the name of a police contact to enable Inspector Sharma to verify when the camera had been removed.
Inspector Sharma requested that video recordings from the front and back door cameras for the period July 20 to 28, 2012 inclusive be delivered to him by August 3, 2012. When he viewed the recordings on August 16, 2012, only images from the back door for the period July 20 to 23 had been provided. Further, the video produced by the rear door camera was of poor quality due to shadows from a nearby light which is triggered by a motion sensor. Inspector Sharma unsuccessfully attempted to reach Mr. Abosede on August 16, 2012 to advise him that the video was incomplete. He was unable to leave a voice message. On cross-examination, Mr. Abosede asked Inspector Sharma if he had called to request the balance of the video and Inspector Sharma repeated that he attempted to contact Mr. Abosede on August 16, 2012. Asked when he next contacted Mr. Abosede, Inspector Sharma stated that he could not be certain without his notes but that it was within three or four weeks. Mr. Abosede also asked if the inspector was not aware when he requested the video that no images from the front camera could be provided. Inspector Sharma stated that he expected either the images to be provided or an explanation of why they could not be provided. Asked again how Inspector Sharma expected Mr. Abosede to have video, Inspector Sharma stated “I expected you to fulfill your requirements or to notify the AGCO”.
During the inspection, Inspector Sharma advised Mr. Abosede that a complaint had been received about after hours alcohol sales at Femi’s Place. Mr. Abosede advised him that the tenants who lived above his establishment were the source of the problem. Inspector Sharma reminded Mr. Abosede of Femi’s Place’s licensed hours of service and that signs of service must be cleared within forty five minutes following final service.
On August 26, 2012, Inspector Sharma, accompanied by Inspector Devin Sookdeo, inspected Femi’s Place, entering at 4:37 a.m. When the inspectors arrived, the front door was locked. Mr. Abosede opened the door for the inspectors and told them that the door, which Inspector Sharma testified should have been open for fire safety reasons given there were patrons inside the establishment, had been locked to keep troublemakers out. On entering the premises, Mr. Sharma saw Mr. Abosede pick up a can of Coke and a can of Canada Dry and take them to the kitchen. Mr. Sharma also observed a can of Coke with a straw in it which he testified had the smell of alcohol. He asked Mr. Abosede to pour the contents onto a plate and, after they observed that the contents were in fact beer, Mr. Abosede stated he did not know how the beer had gotten into the can. Inspector Sharma observed other cans and two Corona bottles on tables in the establishment and bottles of Jack Daniels and Absolut vodka with red cups and straws on a counter near the kitchen door. He asked Mr. Abosede to smell the cans and Mr. Abosede agreed they contained beer. Mr. Sharma also observed another can of Coke on the stairs leading to the basement which also had a strong smell of beer.
On cross-examination, Inspector Sharma stated that he did not see either Mr. Abosede or any of his employees serving alcohol in cans but reiterated that he saw three cans which contained beer. Inspector Sharma agreed that it would be possible for patrons to bring their own hidden alcohol into the establishment and pour it into cans but then added that he believed bottles would not be left in plain view in these circumstances.
On September 15, 2012, again accompanied by Inspector Sookdeo, Inspector Sharma conducted an inspection of Femi’s Place beginning at 3:39 a.m. On entering the premises, Mr. Sharma observed a male patron drinking from a red plastic cup which the patron confirmed was beer with lime. The patron advised Inspector Sharma that he was celebrating obtaining his Canadian citizenship and that he did not want to get anyone into trouble. At the time of the inspection, there were approximately ten patrons in the establishment. Inspector Sharma observed another patron approach a female kitchen staff member and ask her for a beer: the staff member pointed at the inspectors and said “no”.
Mr. Abosede was not present when the inspectors arrived at Femi’s Place on September 15, 2012 but arrived approximately five minutes later. He had gone home to take some medication to his wife and had left the establishment’s D.J. in charge. However, at no time did the D.J. leave the stage while the inspectors were present. Inspector Sharma advised Mr. Abosede of his finding that the signs of service had not been cleared and Mr. Abosede became upset saying that the D.J. should have ensured it was done.
On cross-examination, Inspector Sharma stated that he did not ask the male patron who had the cup of beer how he obtained the alcohol. Mr. Abosede asked the inspector if he was aware that the backdoor was always open and if it would have been possible for someone to come from the premises above the establishment and enter Femi’s Place. Inspector Sharma replied that even if this were the case, it would be the licensee’s responsibility to ensure rules were followed. Mr. Abosede also asked if the inspector was in uniform or identified himself to the D.J. Mr. Sharma replied that he did not.
Sergeant Andrew Pierre has been an Ontario Provincial Police officer for twenty three years and has been assigned to the AGCO for almost five years. Sergeant Pierre testified that on July 28, 2012, he accompanied Inspectors Sharma and McFadden on an inspection of Femi’s Place. He was familiar with the establishment because of complaints lodged by the area municipal Councillor with respect to after hours service. When he arrived at 2:25 a.m., he observed a group of males outside the front of Femi’s Place. They went down the laneway beside the establishment. When Sergeant Pierre entered the establishment, he observed them with Mr. Abosede at the back of the premises and he saw them exit from the back door. He asked Mr. Abosede who they were and Mr. Abosede replied he did not know.
During the July 28th inspection, Sergeant Pierre spoke to bartender C.J. He observed her take a Corona beer from the chest cooler in the kitchen and start walking into the restaurant. Mr. Abosede told her to stop. Asked if staff members are allowed to consume alcohol after hours of service cease, Sergeant Pierre stated they are not.
Sergeant Pierre confirmed that Mr. Abosede advised Inspector Sharma that he was unable to provide video from the front door camera because Toronto police had executed a search warrant and the camera had either been seized or destroyed. Asked if he was aware if Mr. Abosede had advised the AGCO of the camera’s loss before the date of inspection, Sergeant Pierre, stated “no” but that he would expect a licensee to contact the inspector to advise him that he was unable to comply with the licence condition requiring a camera to be in place.
On cross-examination, Mr. Abosede asked Sergeant Pierre if he was wearing a uniform and if the patrons who he had seen exit from the back door would have been aware that he was a police officer. Sergeant Pierre responded that he was not wearing a uniform but he believed that the patrons would have recognized him as a police officer because he was wearing his full service belt under his coat.
Inspector Josee McFadden has been employed by the AGCO for five years. She accompanied Inspector Sharma and Sergeant Pierre to conduct a compliance inspection of Femi’s Place on July 28, 2012. Inspector McFadden testified that this was the first time she had inspected Femi’s Place and she was aware of the conditions on its licence. She observed that there was no camera in place at the front entrance that night.
Inspector Devin Sookdeo has been an inspector with the AGCO since January, 2006. On August 26, 2012, he accompanied Inspector Sharma on the inspection of Femi’s Place, arriving at 4:37 a.m. Inspector Sookdeo testified that he observed that Mr. Abosede appeared distracted and was watching patrons while Inspector Sharma spoke to him. Mr. Abosede went to a table and took a can of Coke and a can of Canada Dry to the kitchen and threw them out. The inspectors took the cans and smelled a strong odor of alcohol in them. Inspector Sookdeo also observed a bottle of Coke and a bottle of Canada dry and red plastic cups on a counter. Below them were 750 ml bottles of Jack Daniels and Absolut vodka. Asked if the bottles were being stored there, Inspector Sookdeo noted that the bar area to the left was where the majority of alcohol is stored. Inspector Sookdeo also observed two empty beer bottles on a table in the restaurant. Inspector Sookdeo stated that Inspector Sharma reminded Mr. Abosede that all signs of service must be cleared within 45 minutes of the end of hours of service and Mr. Abosede responded that patrons had brought their own alcohol in.
On September 15, 2012, Inspector Sookdeo again accompanied Inspector Sharma on an inspection of Femi’s Place, arriving at 3:39 a.m. The inspectors conducted a general walk-through of the premises and observed a male drinking from a red plastic cup. The male identified the contents as Corona beer. Mr. Abosede was not on the premises when the inspectors entered the premises but arrived five minutes later. Inspector Sharma again reminded Mr. Abosede that all signs of service must be cleared and of the infraction the inspectors had found. Inspector Sookdeo further testified that he observed a male go to the kitchen and ask a female staff member for a beer. She said “no” and pointed to the inspectors. Asked if the establishment looked like it was open, Inspector Sookdeo stated that it did.
Applicant’s Evidence
The Applicant’s evidence comprised his own testimony and that of one witness.
Arowna Brooks is Mr. Abosede’s wife but is neither an owner nor an employee of Femi’s Place. She testified that it took a year to establish Femi’s Place and another year to obtain a liquor licence. She stated that it was difficult because of the area of the city in which Femi’s Place is located because of prostitution, for example.
Mr. Abosede stated he established Femi’s Place to feature music and art. When he applied for a liquor licence, the City of Toronto objected to his liquor licence, stating that drugs and alcohol were being sold. He noted that the City claimed this had been going on for ten years even though Femi’s Place had only been in its location for one year when the objection was filed. He then stated that he was given his licence because he complied with all requirements. He was happy with the conditions on his licence, particularly with the requirement for cameras which he had installed for his own benefit before he obtained the licence, stating that not having a camera is unsafe for him and that he in fact has two cameras in addition to those required by the condition on his licence.
Mr. Abosede testified that approximately fifty officers raided his establishment with a search warrant for the upstairs and downstairs premises on March 24, 2012. He stated that the AGCO was also present. He further testified that there was a shooting in the area on March 10, 2012 and the police asked him for his front door video to see what it revealed of what was happening in the area. On March 24, 2012, Mr. Abosede was charged and fined. Asked by Ms Harari when he realized the camera was taken, Mr. Abosede stated he realized it on the same day and shortly thereafter he retained a lawyer and asked him for help in getting the camera returned. He stated that his lawyer did ask the police but after searching his documents for a few minutes was unable to produce a letter verifying this. He did not replace the camera because he was waiting for its return. Mr. Abosede then stated that he advised the AGCO the camera was missing but the person to whom he spoke did not tell him he should replace it.
With respect to the AGCO inspectors’ request for video recordings for the period July 20th to July 28th, 2012, Mr. Abosede testified that he informed Inspector Sharma that he would be unable to provide the recording for the front door because the camera had been seized. The camera had not been replaced because Mr. Abosede did not have the estimated $1500 this would cost. Mr. Abosede has subsequently purchased and replaced the camera.
With regard to the fact that the video provided to the AGCO was only for the period July 20th to July 23rd, Mr. Abosede stated that he bought a flash drive to download the video but it was not big enough and he had to purchase a second one in order to download the files. He had never transferred video before and testified that it took almost three days to download, stating he “wasn’t technically savvy”. He delivered the video on August 3, 2012 to AGCO reception but testified that he did not check to see if it was for the days requested. He stated that he expected Inspector Sharma to ask him for the missing days, noting that had he done so, he could have provided the video since he keeps it for thirty days. However, when Inspector Sharma did not request the missing days, Mr. Abosede did nothing further. Asked by Ms Harari if he checks the video every day, Mr. Abosede stated that he checks it to ensure it is working.
With respect to the inspection on August 26, 2012, Mr. Abosede stated that he never sold beer in cans. He indicated that the upstairs tenants, who have easy access to the restaurant through the back entrance, bring in alcohol; “they do whatever they want to do”. Mr. Abosede does not know how they get drinks into their soft drink cans but stated that he has caught people bringing alcohol, including types he does not sell, into his establishment. He testified that the upstairs tenants are violent people and if he does not allow them in, they break in and cited a broken front window at his establishment as an example. He then noted that the problem has now been resolved because the tenants have moved out. Finally, he testified that that he was clearing tables when the inspectors were present because he constantly works while he is at the restaurant; he was not hiding anything, he was just doing his job.
On cross-examination, Mr. Abosede testified that he does sell soft drinks in bottles and cans and that he does not normally allow people to bring in things that he does sell. He has not seen anyone bring in cans of Coke or ginger ale and stated that whatever they brought in must have been hidden, stating that he tries to be vigilant. Asked if he reviews the video footage, he stated that if people are bringing in alcohol that they would do it in a manner that to ensure they would not be seen. He then repeated that because the back door serves both the upstairs tenants and the restaurant that it would be easy for people from upstairs to bring beer into Femi’s Place.
Mr. Abosede testified that with respect to the inspectors finding a male drinking beer after signs of service should have been cleared on September 15, 2012, that he does not know what happened. He was present at Femi’s Place until the end of service at 2:00 a.m. at which time he went home before returning when the inspectors were present. He stated that because he was not there, he does not know how the patron came to have beer and that the D.J. was in charge during his absence.
Asked by Ms Harari if he witnessed the patron asking his staff member for a beer in the kitchen while the inspectors were present, Mr. Abosede stated that people ask “every hour of the day” and that he did not remember the patron doing this.
THE LAW
Section 15 (1) of the Act states:
The Registrar may issue a proposal to revoke or suspend a licence to sell liquor or refuse to renew such a licence for any ground under subsection 6 (2), (4) or (4.1) that would disentitle the licensee to a licence if the licensee were an applicant or if the licensee has contravened this Act, the regulations or a condition of the licence.
Section 29 of Regulation 719/90 under the Act states:
The licence holder shall ensure that evidence of liquor that has been served and consumed on the premises is removed within forty-five minutes after the end of the period during which liquor may be sold and served under the licence.
APPLICATION OF LAW TO FACTS
It is the responsibility of the Registrar to prove to the Tribunal, on balance of probabililities, that the Applicant has breached the Act or the regulations under the Act.
With respect to the Notice of Proposal dated November 7, 2012 and the alleged breach of conditions 3, 4 and 7 on the Applicant’s licence which require it to ensure there are clearly visible and functioning security cameras, that these be located at each entrance and exit, and that the digital records from the cameras be retained for 30 days, the evidence indicates that the Applicant did breach the conditions.
Inspectors Sharma and McFadden and Sergeant Pierre all testified that there was no security camera in place at the front entrance when they conducted their inspection of Femi’s Place on July 28, 2012, in breach of conditions 3 and 4. The Applicant could not maintain or provide digital records from a non-existent front camera and therefore breached condition 7.
Mr. Abosede does not deny that the camera was missing, testifying that it had been seized by police on March 24, 2012 and that he had not replaced it because of the expense of doing so. Rather, he focused on attempting to have it returned. He stated that he believed his former lawyer had contacted Toronto Police to inquire about the camera’s return; however, although he was given an opportunity to search his records during this hearing, he was unable to produce a copy of any letter which the lawyer sent. Mr. Abosede also testified that he had notified someone at the AGCO that the camera had been taken but he provided no information as to when he did this or to whom he spoke. There was also no evidence that the AGCO was aware of the fact the camera had been seized: Sergeant Pierre specifically testified that he had no knowledge of this before the July 28, 2012 inspection.
With respect to the Notice of Proposal dated November 19, 2012, and the second alleged breach of conditions 3, 4, and 7 of the Applicant’s licence, the evidence indicates that the Applicant did breach the conditions. Inspector Sharma testified that when the inspectors returned to Femi’s Place on August 26, 2012, the camera at the front door was still missing. Mr. Abosede does not deny that he had not yet replaced the camera at that time, in spite of the findings at the July 28, 2012 inspection.
Condition 7 requires the licensee to retain digital records from the security cameras for a minimum of 30 days and provide them to AGCO enforcement upon request. During the July 28, 2012 inspection, Inspector Sharma requested Mr. Abosede to provide, by no later than August 3, 2012, the digital records from both the front and back door cameras for the period July 20 to July 28, 2012 inclusive. On August 3, 2012, Mr. Abosede provided partial video records from the back door; with no camera in place, there were no digital recordings from the front door.
The Tribunal notes that the November 19, 2012 Notice of Proposal states that Mr. Abosede was notified of the alleged contraventions of the Act on August 16, 2012 and on August 26, 2012, the date of the second inspection. However, Inspector Sharma testified that while he attempted to contact Mr. Abosede on August 16, 2012 to inform him that the video recordings were incomplete, he was unable to reach him at the telephone number he had and there was no facility to leave a voice message. Inspector Sharma further testified that without his notes he could not be specific about when he did reach Mr. Abosede, stating he believed it was within two or three weeks. It is therefore unclear to the Tribunal when Mr. Abosede was notified that the digital recordings from the back door which he provided to the AGCO on August 3, 2012 were incomplete.
The conditions on the Applicant’s licence clearly set out its obligation to maintain and provide the digital recordings. Mr. Abosede testified in some detail about the efforts he made and the difficulty he encountered in producing a copy of the footage from the back door camera. While he has an obligation to ensure that the recordings are complete, and he testified he did not check them to ensure they were, the Tribunal notes that he did make some effort to comply with the inspector’s request.
With respect to the alleged breach of condition 11 on the Applicant’s licence which requires the CCTV system be suitable for night viewing and sets out specific quality standards with respect to frame size, image rate and digital format among others, Inspector Sharma testified that the video was unclear and had shadows on it due to a motion sensor light. Mr. Abosede testified that the video might be compromised for a moment when the light comes on. There was no testimony to indicate that the very specific CCTV standards were not complied with and the video recording itself was not entered into evidence. There is therefore insufficient evidence before the Tribunal to conclude that condition 11 was breached.
The November 19, 2012 Notice of Proposal also alleges that the licence holder failed to clear the signs of service and consumption within the licensed premises within 45 minutes after the end of the period in which liquor may be sold. In the case of Femi’s Place, the signs of service and consumption must be cleared by 2:45 a.m. Both Inspectors Sharma and Sookdeo testified that when they arrived at Femi’s Place at 4:27 a.m. that they observed Mr. Abosede clearing a can of Coke and a can of ginger ale. After retrieving the cans from the kitchen garbage, they determined they smelled of beer. A third can was poured out and Mr. Abosede stated that its contents were beer. Two empty beer bottles were on tables. Plastic cups and two bottles of spirits were on a counter near the kitchen rather than stored with other liquor at the bar. In his testimony, Mr. Abosede did not deny that the inspectors found beer in the cans or that empty beer bottles were on the tables. Rather, he suggested that the alcohol found in the cans had been brought into his establishment without his consent or knowledge, likely by his then upstairs neighbours whom he described as “violent” and whom he indicated did whatever they wished to. On cross-examination, Ms Harari asked Mr. Abosede if he normally sold soft drinks in cans and he agreed he did. He further indicated that he did not permit people to bring in items which he normally sold and speculated that the alcohol which found its way into the cans must have been hidden.
Mr. Abosede’s explanation that the alcohol was likely brought in by troublesome neighbours does not ring true. The empty beer bottles and some cans were on tables, a further can was on the stairs, cups were located on the counter near open bottles of spirits; this suggests more than a single incident of an individual sneaking alcohol into then establishment and then pouring it into a soft drink can. Nor did Mr. Abosede suggest that his neighbours had been in the establishment that evening. In her closing statement, Ms Harari suggested that the evidence indicated a concerted effort to camouflage the after hours service of alcohol. The Tribunal notes that neither of the inspectors testified that the cans or bottles were being consumed when they arrived and the Tribunal therefore cannot draw the conclusion suggested by Ms Harari. However, the evidence does clearly indicate that the signs of service and consumption had not been cleared by 2:45 a.m. on August 26, 2012.
Finally, the Notice of Proposal dated November 28, 2012 also alleges that the licence holder failed to clear the signs of service and consumption within the licensed premises within 45 minutes after the end of the period in which liquor may be sold. Both Inspectors Sharma and Sookdeo testified that after arriving at Femi’s Place at 3:39 a.m., they spoke to a male who admitted the cup he was drinking from contained beer. Both inspectors witnessed a patron request a beer from a kitchen staff member who said “no” and pointed to the inspection team. Mr. Abosede testified that he could not address these issues as he himself had no direct knowledge, having left the premises when service ended at 2:00 a.m., leaving the D.J. in charge, and returning approximately five minutes after the inspection team arrived. The licence holder cannot abdicate responsibility for what takes place in the licensed premises. The evidence of the inspectors was clear and could not be refuted by Mr. Abosede. The Tribunal therefore finds that the Applicant was in breach of section 29 of the Act on September 15, 2012.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal finds the Applicant to be in breach of its licence conditions 3, 4 and 7 as set out in the Notices of Proposal dated November 7, 2012 and November 19, 2012 and in breach of section 29 of the Act as set out in the Notices of Proposal dated November 19, 2012 and November 28, 2012. The Tribunal finds the Applicant is not in breach of licence condition 11 as set out in the Notice of Proposal dated November 19, 2012.
The Tribunal requests submissions regarding sanction. The Registrar’s representative shall serve and file written submissions with seven (7) days of the date of this decision and the Applicant’s representative shall have seven (7) days to serve and file a written response. The Registrar’s representative may serve and file a reply within three (3) days of the receipt of the Applicant’s response. All submissions are to be filed with the Tribunal.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
Released: May 31, 2013