Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-09-19
FILE:
8844/LLA
CASE NAME:
8844 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 Revoke a Licence
1860920 Ontario Inc. o/a Papa J’s Doghouse Cafe and Eatery
Appellant
-and-
Registrar of Alcohol and Gaming
Respondent
DECISION AND ORDER
ADJUDICATOR:
Mary Ann Spencer, Member
APPEARANCES:
For the Appellant:
Constantine Bethune, Agent
For the Respondent:
Aviva Harari, Counsel
Heard in Toronto:
August 26, 2014
REASONS FOR DECISION AND ORDER
BACKGROUND
The Registrar of Alcohol and Gaming (the “Registrar”) under the Liquor Licence Act (the “Act”) issued a Notice of Proposal (the “Proposal”), dated April 17, 2014 which proposed to revoke the licence of 1860920 Ontario Inc. o/a Papa J’s Doghouse Cafe and Eatery (the "Appellant”). The Appellant has appealed the Proposal to the Licence Appeal Tribunal (the “Tribunal”).
In summary, the grounds for the Proposal are as follows:
- contrary to section 6(2)(d) of the Act, there are reasonable grounds for belief that the business will not be carried out in accordance with the law and with integrity and honesty;
- contrary to sections 45(1) and 45(2) of the Act, the licence holder obstructed and failed to facilitate an inspection under the Act;
- contrary to section 44(1) of Ontario Regulation 719/90, the licence holder failed to ensure that no person was allowed behind the bar while liquor was being sold or served; and
- the licence holder violated conditions on the licence.
EVIDENCE AND FACTS
In June, 2013, an incident took place at the Appellant’s establishment. Allegedly, a drug was put into a patron’s drink after which she was driven to another location and sexually assaulted. Inderjeet Joshi was charged with administering a noxious substance. As a result of this incident, five conditions were placed on the Appellant’s liquor licence; the first three of which, respectively, forbid Mr. Joshi having any involvement in the business operations of the establishment; forbid Mr. Joshi being employed by the licence holder in any capacity; and, exclude Mr. Joshi from the establishment. The remaining two licence conditions require the license holder to ensure there are functioning high-resolution security cameras recording the entrances, exits and public areas of the premises and require the surveillance records be made available for inspection on request for a period of 90 days.
The Registrar’s Evidence
The evidence of the Registrar comprised the testimony of Constable Daniel Peters of the Ontario Provincial Police and Alcohol and Gaming Commission (“AGCO”) Inspectors Natasha Gayle and Devin Sookdeo.
Constable Daniel Peters has been employed with the Ontario Provincial Police for eighteen years, ending a four year assignment with the AGCO investigation unit in March, 2014. Constable Peters testified that in early January, 2013, at the request of the AGCO, he undertook an investigation of the Appellant to confirm its ownership. In such an investigation, the normal practice is to notify the owner on record and provide him with a form requesting a variety of information and documents.
Accordingly, Constable Peters contacted Mr. Bethune, the principal of the Appellant, by e-mail, on January 2, 2014. Mr. Bethune acknowledged receipt of the e-mail on January 6, 2014. Constable Peters then immediately e-mailed the “Request for Documents and Additional Information” to Mr. Bethune with a reply deadline of January 27, 2014. On the same day, Mr. Bethune acknowledged the form’s receipt and advised he would prepare the information as soon as possible. On January 27, 2014, when the information had not been received, Constable Peters sent an e-mail requesting a status update. He sent a further request on January 30, 2014. Mr. Bethune replied and was provided with a ten day deadline extension which Constable Peters confirmed in an e-mail also dated January 30, 2014. When the information had not been received by the revised deadline of February 10, 2014, Constable Peters attempted to call Mr. Bethune and, when no voice mail message could be left, sent him a text message. After he received no reply, he closed his file because he was unable to complete the investigation.
Natasha Gayle has been employed as an inspector by the AGCO since September, 2011. On December 17, 2013, at the request of Constable Peters, Ms Gayle conducted an inspection of the Appellant’s establishment to verify its compliance with the conditions that had been placed on the licence. Ms Gayle did not observe any security cameras at the establishment. Mr. Bethune was not on the premises but Ms Gayle spoke to Jackie Donovan, the employee in charge, who advised her that he was not aware of the licence conditions. Ms Gayle advised him of the conditions and also asked him to have Mr. Bethune contact her or Constable Peters.
On January 9, 2014, Ms Gayle conducted a further inspection. She observed a camera on the outside of the establishment but none inside. She spoke to Mr. Donovan, who was the sole employee present, and again reviewed the licence conditions with him. Mr. Donovan advised that the establishment did have cameras but they had not been hooked up yet. On January 15, 2014, Ms Gayle spoke to Mr. Bethune on the telephone. He confirmed that video cameras had been received. Ms Gayle also advised Mr. Bethune that Constable Peters had been trying to contact him.
On March 14, 2014, Ms Gayle again conducted an inspection. When she arrived, the entrance door was open and she observed that the only person in the establishment was a male behind the bar. This male advised her that he did not work there but was helping with wiring, that he occasionally fixed things. This individual told Ms Gayle that the person in charge was at the convenience store next door and would return shortly. He then left the establishment. Ms Gayle then observed him hold a brief conversation outside with an individual who subsequently identified himself as Vincent Pentz, the person in charge. Mr. Pentz told Ms Gayle that he was not aware of the conditions on the Appellant’s licence and that cameras were not installed. While she was speaking to Mr. Pentz, the male who had been behind the bar re-entered, joined the conversation, and advised that they were having issues installing the camera because of software. The male identified himself as “Sam” and again left the premises. Ms Gayle told Mr. Pentz that the cameras needed to be installed and left. As she was leaving, “Sam” entered again. Asked his surname by Ms Gayle, he hesitated and then replied “Kumar”.
Ms Gayle testified that she had suspicions about Mr. Kumar’s identity given his hesitation in identifying himself. Therefore, she reviewed the licence conditions that related to Mr. Joshi, whom she had never met, with Mr. Pentz.
Because of her suspicions that Mr. Kumar might in fact be Mr. Joshi, Ms Gayle subsequently had a conversation with Devin Sookdeo, the inspector who had previously had responsibility for her inspection area. Mr. Sookdeo confirmed that he had previously met Mr. Joshi and, on March 15, 2014, Ms Gayle and Mr. Sookdeo went together to inspect the Appellant’s establishment. Ms Gayle testified that when they entered, she saw a male sitting at the end of the bar who she recognized as “Sam” from her previous inspection. The male appeared to turn and put his head down to hide his face. He then put on a black ski mask. Four other individuals were in the establishment. Employee Stacy Bradshaw was behind the bar and Mr. Pentz, who told Ms Gayle he was off duty, was sitting with two females at the bar.
Ms Gayle testified that Mr. Sookdeo went behind the bar to face “Sam” and asked if he remembered him. Mr. Sookdeo identified “Sam” as Inderjeet Joshi. Ms Gayle asked Mr. Joshi why he had previously told her his name was “ Sam Kumar” and he stated that everyone knew him as Sam but provided no reason for giving her the false last name. Ms Gayle then reviewed the licence conditions with him. He told her that he had contacted the AGCO legal department to attempt to get the conditions removed. At this point, Ms Gayle, Mr. Sookdeo and Mr. Joshi moved to the rear kitchen where they were joined by Stacy Bradshaw. Mr. Joshi was told he had to leave. However, Mr. Joshi began to explain the details of the disposition of his criminal charges and then said “I don’t really care about conditions”. Mr. Joshi was again asked to leave and Ms Bradshaw was asked to have Mr. Pentz join the inspectors in the kitchen. Mr. Pentz refused saying he was off duty. After reviewing the conditions with Ms Bradshaw, Ms Gayle went back to the bar and spoke to Mr. Pentz who stated that he knew Mr. Joshi as “Sam” but did not know his last name and would not be able to pronounce it if he did.
Devin Sookdeo has been employed by the ACGO since 1998 and has been an inspector since 2006. He was formerly responsible for inspections in the area in which the Appellant’s establishment is located and did the initial inspection following its licensing. Mr. Sookdeo testified that he had met both Mr. Bethune and Mr. Joshi.
On March 15, 2014, Mr. Sookdeo accompanied Ms Gayle on an inspection of the Appellant’s establishment. He testified that when he entered, he observed a male sitting at the bar place his head down and away and then put on what he described as a balaclava. Mr. Sookdeo went behind the bar to speak to him and recognized him as Inderjeet Joshi. Mr. Joshi raised his court case and told Mr. Sookdeo he knew he was not allowed to work at the Appellant’s establishment. Mr. Sookdeo informed him that he was not allowed to be at the establishment. Mr. Joshi asked if he could not even have a beer and was told he could not. Mr. Sookdeo then spoke to employee Stacy Bradshaw who told him that Mr. Joshi did maintenance work and odd jobs at the establishment.
The Appellant’s Evidence
Constantine Bethune is the principal of the Appellant. Papa J’s Doghouse Cafe and Eatery opened in November, 2012. Mr. Bethune testified that initially, he worked during the day and a bartender worked evenings. However, Mr. Bethune became ill in January, 2013 and as a result, he has been able to spend only four to six hours a week at the establishment. He has three employees: Mr. Donovan, Mr. Pentz and Ms Bradshaw, who has been the manager since December, 2013. Only one employee works at one time other than a brief overlap when shifts change.
Mr. Bethune has known Inderjeet Joshi for approximately ten to eleven years, having met him in his previous job. He did employ Mr. Joshi as a short order cook shortly after he opened the establishment.
Mr. Bethune testified that after the incident which resulted in charges being laid against Mr. Joshi, he was approached by an AGCO officer at his home and advised that he needed to sign the conditions which were placed on his licence. After he did so, he informed Mr. Joshi of their content. However, he has had difficulty keeping Mr. Joshi out of the establishment as the conditions require, noting that he has caught him there and asked him to leave. Mr. Bethune has tried to enforce the conditions. When staff are hired, he tells them about the conditions and he has let someone go because they have not enforced them. Asked if Mr. Pentz knew about the conditions, Mr. Bethune stated he did, but added that Mr. Pentz is “hard to deal with” although he trusts him to work alone in the establishment. Mr. Bethune noted that Mr. Joshi brings lots of people into the bar, and is friends with the staff who allow him in when Mr. Bethune is not present. It was Mr. Joshi who referred Ms Bradshaw to Mr. Bethune. Asked by Ms Harari how he ensured compliance with the conditions, Mr. Bethune stated he has told the staff they have to comply.
Mr. Bethune testified that he has discussed the fact that violations of the conditions on the liquor licence could result in its loss with both Mr. Joshi and his employees. He noted that Mr. Joshi did not leave the bar on the night of the incident which led to the conditions being placed and the charges against him were dropped. Therefore, he was prepared to ask that the conditions be removed. He also noted that when he first became ill, Mr. Joshi “stepped up” and helped him out.
With respect to security cameras, Mr. Bethune initially purchased a camera at a restaurant fixture auction and installed it in November, 2013. However, by the end of November, he realized it was not functioning. He then bought a second camera at the end of December and hired R., a friend of Mr. Joshi’s, to install it in January. However, this camera also did not work well. Mr. Joshi’s friend then found another camera which was Internet based but there were difficulties with the software. Mr. Bethune does not know how Mr. Joshi came to be behind the bar when Ms Gayle inspected on March 14, 2014.
Mr. Bethune testified that he did send some of the documents requested by Constable Peters to the AGCO on February 13, 2014. However, he does not have a copy of any covering letter or e-mail to support this. He noted that many of the documents requested were already on file with the AGCO and therefore he assumed he did not have to send those again.
Mr. Bethune noted that his establishment is in a strip mall that is slated for demolition and he intends to close when this happens. The demolition was to take place in the summer of 2014 but has now been delayed to the summer of 2015. He stated that if he loses his licence, and is forced to close the bar, he will have to pay the lease and people will lose their jobs. He suggested that a licence suspension would help his employees realize that compliance with the conditions was serious.
THE LAW
The Act states:
(1) 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.
(2) Subject to subsection (4) or (4.1), an applicant is entitled to be issued a licence to sell liquor except if,
(d) the past or present conduct of the persons referred to in subsection (3) affords reasonable grounds for belief that the applicant will not carry on business in accordance with the law and with integrity and honesty;
(3) Clause (2) (d) applies to the following persons:
The applicant.
An officer or director of the applicant.
A person who is interested in another person, as described in subsection 1 (2).
A person having responsibility for the management or operation of the business of the applicant
(1) No person shall obstruct a person carrying out an inspection under this Act or withhold, destroy, conceal or refuse to provide any relevant information or thing required for the purpose of the inspection.
(2) It is a condition of each licence and permit issued under this Act that the licensee or permit holder facilitate an inspection relevant to the licence or permit.
Section 44(1) of Regulation 719 states:
The licence holder shall ensure that no person enters behind the bar at the premises to which the licence applies during the hours that liquor is sold or served unless the person is,
(a) an employee authorized by the licence holder to enter behind the bar
APPLICATION OF LAW TO FACTS
The onus is on the Registrar to prove to the Tribunal, on a balance of probabilities, that the Applicant has breached the Act or the regulations under the Act.
The issue before the Tribunal is whether or not there are reasonable grounds for belief that the licence holder will not carry on business in accordance with the law and with integrity and honesty. Did the licence holder breach conditions on his licence, obstruct and/or fail to facilitate an inspection, or permit an unauthorized individual behind the bar while alcohol was being sold or served?
The testimony of Ms Gayle and Mr. Sookdeo indicates that there were violations of the condition forbidding Inderjeet Joshi’s presence at the licenced premises on both March 14 and March 15, 2014. That condition states:
Inderjeet Joshi shall be excluded from the entire property of 1860920 Ontario Inc. o/a Papa J’s Doghouse Café & Eatery 631 Kennedy Road, Scarborough, ON M1K 2B2.
Further, on March 14, 2014, not only was Mr. Joshi on the premises but he appeared to be working in violation of the second condition on the Appellant’s licence:
The holder of the licence shall not employ Inderjeet Joshi in any capacity including as manager, security personnel, service or other function.
Ms Gayle testified that when she arrived at the premises, the entrance door was open and the only person present, the individual who identified himself as “Sam” and was identified the next day as Inderjeet Joshi, was behind the bar in violation of section 44(1) of Regulation 719. Sam/Mr. Joshi told Ms Gayle he did not work at the establishment but occasionally helped out by fixing things.
Mr. Bethune did not dispute the inspectors’ testimony. Rather, he admitted that he had difficulty controlling Mr. Joshi, testifying that he had made Mr. Joshi aware of the conditions and told him about the potential negative impact of violating them. And, notwithstanding Ms Gayle’s testimony that both Mr. Donovan and Mr. Pentz told her they was unaware of the licence conditions, Mr. Bethune also testified that he had told all of his staff about the conditions but admitted they were not ensuring Mr. Joshi did not enter the premises. He suggested that the imposition of a suspension by the Tribunal would assist him in demonstrating to the staff the serious impact that failure to comply with conditions could have. In effect, Mr. Bethune suggested that the Tribunal issue a suspension as a type of compliance mechanism to help him control both Mr. Joshi and his staff.
While Inspector Gayle‘s testimony that, on March 15, 2014, Mr. Joshi told her “I don’t really care about conditions” supports Mr. Bethune’s statement about his difficulties controlling Mr. Joshi, it is Mr. Bethune’s responsibility as the licence holder to put measures in place to ensure that licence conditions are met. He failed to do so. The Tribunal finds that the Appellant was in violation of the condition excluding Mr. Joshi from the premises.
The Tribunal accepts Mr. Bethune’s testimony that he hired R., a friend of Mr. Joshi’s, to source and install security cameras and that he does not know how Mr. Joshi came to be behind the bar on March 14, 2014. Ms Gayle testified that Ms Bradbury told her that Mr. Joshi did odd jobs at the establishment. While Mr. Bethune testified that when the establishment first opened, Mr. Joshi worked as a cook, the Registrar offered no evidence to prove that Mr. Joshi was actually employed by the Appellant after the conditions were placed on its licence other than the fact Mr. Joshi stated he was working on wiring on March 14, 2014. The Tribunal therefore finds that the Appellant was not in violation of the condition prohibiting Mr. Joshi’s employment.
The evidence does indicate that the Appellant failed to comply with the conditions requiring the installation of security surveillance cameras. Again, Mr. Bethune did not dispute Ms Gayle’s testimony that there were no cameras in place anywhere on December 17, 2013 or inside the premises on January 9 and March 14, 2014. While Mr. Bethune did testify that he had purchased cameras three times and each had performance issues, the Tribunal notes that the first camera was not purchased until November, 2013, even though the conditions had been placed on the licence in June of that year.
The evidence also indicates that the licence holder did breach sections 45(1) of the Act. Constable Peters testified that he received no documents from Mr. Bethune notwithstanding the fact he granted him a ten day deadline extension for their production. While Mr. Bethune testified that he did submit some documents on February 13, 2014, three days after the extended deadline, he did not produce any covering letter or e-mail to support his statement.
With respect to the alleged violation of section 45(2) of the Act, the Tribunal finds that the Appellant did fail to facilitate an inspection. Ms Gayle testified that on March 14, 2014, she observed Mr. Joshi speaking outside the establishment to employee Vincent Pentz who had not been present when she arrived. While she was speaking to Mr. Pentz after he had entered the establishment, Mr. Joshi also entered and subsequently identified himself to her as “Sam”. Mr. Pentz did not correct Mr. Joshi’s self-identification. He also indicated he was unaware of the conditions on the Appellant’s licence. The question before the Tribunal is whether or not Mr. Pentz knew who Mr. Joshi was and withheld this information from the inspector.
On March 15, 2014, Mr. Pentz and Mr. Joshi were both seated at the bar when Ms Gayle and Mr. Sookdeo entered. Mr. Pentz told Ms Gayle, after initially refusing to join the inspector in the kitchen because he was not working, that he did not know Mr. Joshi’s last name, knowing him only as “Sam”. However, Mr. Bethune testified that he had told all of his employees about the licence conditions but he still had found Mr. Joshi in the establishment on a number of occasions, noting that Mr. Joshi was friends with the employees and brought in business and tips.,He expressed some frustration with his employees’ behavior, noting that Mr. Pentz was “difficult to deal with” and suggested that an order of suspension by the Tribunal would help him demonstrate the importance of complying with the licence conditions. Based on Mr. Bethune’s testimony, the Tribunal concludes that Mr. Pentz did know Mr. Joshi’s identity and deliberately withheld this information from Ms Gayle. The Tribunal therefore finds that the licensee failed to facilitate an inspection.
In her closing submission, Ms Harari described Mr. Bethune’s attitude to the business as “laissez faire”. The Tribunal does note that Mr. Bethune has been ill and unable to attend at the establishment with any regularity since January, 2013. It also notes that in his closing statement, he expressed a hope that he would be penalized with a suspension which would assist him in proving to his staff that failure to comply with licence conditions is a serious situation. Mr. Bethune’s staff may have let him down. However, it is his responsibility to put mechanisms in place to ensure compliance with the Act, the regulations and the licence conditions. He failed to do so.
The Tribunal finds that the Appellant did breach sections 45(1) and (2) of the Act, section 44(1) of Regulation 719 and the conditions on its licence excluding Inderjeet Joshi from the premises of the licensed establishment and requiring the installation of visible and functioning security cameras and the maintenance of their surveillance records.
With regard to the above noted contraventions, Section 15 of the Act provides for either suspension or revocation of a licence in the case of contravention of the Act, regulations or a condition of the licence. In this regard, the Tribunal is requesting submissions on sanction.
ORDER
Pursuant to the authority vested in it under the provisions of the Act, the Tribunal finds the Applicant to be in breach of sections 45(1) and (2) of the Act, subsection 44(1) of Regulation 719/90, and the conditions on its licence which exclude Inderjeet Joshi from the premises and require the installation of security cameras and the storage of their surveillance records.
The Tribunal requests submissions regarding sanction. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision and the Applicant’s representative shall have seven (7) days from receipt of the Registrar’s submissions 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.
LICENCE APPEAL TRIBUNAL
________________________
Mary Ann Spencer, Member
Released: September 19, 2014