Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2015-10-18
FILE:
9550/LLA
CASE NAME:
9550 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
2404913 Ontario Ltd. o/a Westwood Place Burgers Restaurant
Appellant
-and-
Registrar of Alcohol and Gaming
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Jacqueline Castel, Member
APPEARANCES:
For the Appellant:
Douglas Allen, Paralegal
For the Respondent:
Rena Khan, Counsel
Faye Alipour, Student-at-Law
Heard in Toronto:
September 22, 2015
DECISION AND ORDER
BACKGROUND
2404913 Ontario Ltd., o/a Westwood Place Burgers Restaurant (the “Appellant” or the “Licensee”), has appealed, to the Licence Appeal Tribunal, a Notice of Proposal issued by the Registrar of Alcohol and Gaming (the “Registrar”) on February 25, 2015. The Registrar proposed to suspend the licence of the Appellant for 14 days.
FACTS
The Registrar called two witnesses, Alcohol and Gaming Commission of Ontario (“AGCO”) Inspectors Stephen Hetherington and Kamesha Peck. They attended Westwood Place Burgers Restaurant (the “establishment” or the “premises”) on August 24, August 27 and October 18, 2014.
Inspector Hetherington testified that while driving by the establishment on August 24, 2014 at approximately 3:58 a.m., he noticed that the lights were on inside. As a result, he and Inspector Peck stopped and went inside. The door to the premises was unlocked and there were people inside. Inspector Hetherington testified that when he entered, he observed two males at the service bar drinking Heineken beer. He also observed several bottles on the counter in the kitchen which were full or partially full, specifically a Budweiser, Labatt Ice, Guinness, Bacardi Breezer, Heineken and Corona. Inspector Hetherington stated that he examined the bottles and they were “cold as ice” and some were “sweating” condensation.
Inspector Hetherington testified that the manager, Tofazzal Haque, advised him that he was having a private party and that he was not selling the liquor after 2 a.m.
Inspector Peck testified that when she attended the premises on August 24, 2014, the door to the establishment was unlocked and people were inside. She indicated that she observed Heineken bottles on the counter. Some were empty and others were full. She also observed a male patron with a Heineken and a female patron with a Corona. She indicated that Mr. Haque was holding an open bottle of Corona.
Inspector Hetherington testified that he attended the establishment at 12:30 p.m. on August 27, 2014 with Inspector Peck and members of the Toronto Police Services, 12 Division. He stated that their purpose in attending, on this occasion, was to conduct a spot check, as a result of an anonymous complaint received by the Toronto Police Service, of liquor in the establishment that was not purchased from the Liquor Control Board of Ontario (“LCBO”).
Inspector Hetherington stated that when he entered the establishment, he identified himself to Hefzul Islam, a co-owner of the establishment, and her spouse, Kamrum Islam, and then began to check the stock behind the bar. He testified that he discovered a bottle of Wray & Nephew Rum with the unit of measurement “litre” on the label. He indicated that the LCBO only sells 750 ml bottles of Wray & Nephew Rum. He testified that the police discovered a second bottle of Sauza Tequila with the unit of measure “litre” and a U.S. Surgeon General’s warning on the label, and he indicated that bottles sold by the LCBO do not have that warning on them or the litre unit of measurement. On cross-examination, he clarified that although the police discovered the bottle of Sauza Tequila, he had an opportunity to inspect it before the police placed it in an evidence bag. He also testified that he located five bottles displayed on the bar with black markings on them. He indicated that the black markings are used on some of the labels of bottles sold at duty free stores in Canada and the United States, but do not appear on the labels of bottles sold by the LCBO.
Inspector Hetherington wrote up a demand for receipts for the aforementioned bottles and provided a deadline of September 3, 2014 for submitting the receipts. He never received the receipts.
Inspector Peck testified that on August 27, 2014 when she attended the establishment, she noticed that Kamrum Islam and Hefzul Islam were present. She also observed one or more bottles with black markings, and the portion sizes were missing from other bottles or the label just said “litre” which is not how bottles purchased from the LCBO are labelled. Inspector Peck testified that she heard Inspector Hetherington ask for receipts for the liquor they suspected as not being purchased from the LCBO and observed him make a written request for the receipts on the back of his business card. Initially Inspector Peck testified that the receipts were received from the establishment on September 3rd, however, after referring to her notes, she changed her testimony and indicated that the receipts were not received.
Inspector Hetherington testified that he and Inspector Peck attended the establishment at 3:04 a.m. on October 18, 2014. He indicated that when he arrived, the front door was locked. He testified that from a window of the establishment, he had an unobstructed view into the bar and observed five males and one female near the pool table to the rear of the bar. Inspector Hetherington testified that when he returned to the front door to enter the establishment, a male at the door opened it a couple of inches and yelled, “Bar’s closed, exit only.” However, when he identified himself as a liquor inspector, he was permitted to enter. Inspector Hetherington testified that he observed three bottles of Heineken, half empty, on a table by the door. He also observed a male patron with a bottle of Molson Canadian and another male holding a white plastic cup.
Inspector Hetherington testified that the manager, Tofazzal Haque, was by the bar when he entered and he was not attempting to clear the signs of beverage alcohol service. According to Inspector Hetherington’s testimony, Mr. Haque only began clearing the signs of service after Inspector Hetherington approached him and made reference to the time.
Inspector Peck testified that on October 18, 2014, when she attended the establishment at 3:04 a.m., there were still patrons in the bar. She indicated that she also observed three Heineken beers on a table.
Mr. Allen called one witness, the manager of the premises, Mr. Tofazzal Haque.
Mr. Haque testified that on August 24, 2014, there were bottles of alcohol in the kitchen because the sink is there and that is where they dump the alcohol. He denied selling alcohol after 2 a.m. On cross-examination, he denied telling the inspectors that he was having a private party at the establishment or that he was not charging the guests or customers for the liquor.
Mr. Haque indicated that he was not at the establishment on August 27, 2014 when the inspectors and police officers attended. On cross-examination, he admitted that Hefzul Islam had made him aware of the inspectors’ concerns regarding certain bottles of liquor allegedly not being purchased from the LCBO. He testified that he provided Hezful Islam with the receipts they were requesting. He indicated that he believes Hezful Islam showed the receipts to the inspectors, but he was not present when he did so and could not provide a date. He denied tearing up the receipts.
Mr. Haque testified that he is the one who let the inspectors into the establishment on October 18th. He initially denied them entry because he thought they were customers and the bar was closed. On cross-examination, he indicated that “maybe” a couple of people were in the establishment when the inspectors arrived but he could not recall the specifics. He denied telling the inspectors that as long as the liquor is in white cups, it can be out after 2:45 a.m.
THE LAW
The Registrar is alleging that the Appellant contravened ss.29, 25(1) and 33(1) of Ontario Regulation 719/90 prescribed under the Liquor Licence Act (the “Act”).
The onus is on the Registrar to establish on a balance of probabilities that the contraventions alleged in the Notice of Proposal occurred.
Section 29 of O. Reg. 719/90 requires the license holder to ensure that all evidence of liquor which has been served and consumed on the premises be removed within 45 minutes of the end of the period during which liquor may be sold and served under the license. Accordingly, the signs of beverage alcohol service must be cleared by 2:45 a.m. (except on January 1).
Subsection 25(1) of O. Reg. 719/90 stipulates that with the exception of December 31, liquor may be sold and served only between 11 a.m. on any day and 2 a.m. on the following day.
Subsection 33(1) of O. Reg. 719/90 provides that the licence holder shall only bring or permit liquor to be brought onto the premises, if it has been purchased by the licence holder under the licence from a government store. This applies to licensed areas of the premises and to areas used in connection with the sale and service of liquor, including the liquor storage the food preparation areas.
ISSUES
Did the Licensee fail to clear the signs of beverage alcohol service by 2:45 a.m. on August 24 and October 18, 2014, thereby contravening s. 29 of O. Reg. 719/90?
Did the Licensee serve beverage alcohol after 2 a.m. on August 24, 2014, thereby contravening s. 25(1) of O. Reg. 719/90?
Did the Licensee bring or permit liquor to be brought onto the premises which was not purchased from a government store, thereby contravening s. 33(1) of O. Reg. 719/90?
REASONS
The Tribunal found the inspectors to be forthright witnesses; however, their evidence was not always entirely consistent. Inspector Hetherington provided evidence that was generally detailed, his independent recollections were good and he did not waver under cross-examination. Inspector Peck’s evidence was not sufficiently detailed and her independent recollections were, at times, imprecise. For instance, she initially testified that the Appellant had supplied the receipts which Inspector Hetherington requested but subsequently changed her testimony after consulting her notes. Given that Inspector Peck’s evidence lacked detail and her independent recollections were unreliable, the Tribunal did not rely on her evidence.
The Tribunal also found the testimony of Mr. Haque to be vague and lacking in detail. In addition, he acknowledged that he was not present at the establishment on one of the dates in question, August 27, 2014, although he admitted to being aware of the concerns the inspectors raised on this occasion.
Section 29
Based on the evidence of Inspector Hetherington, the Tribunal is satisfied that the Licensee failed to clear all the signs of beverage alcohol service by 2:45 a.m. on both August 24 and October 18, 2014. Specifically, on August 24th, Inspector Hetherington observed two males drinking from bottles of Heineken beer at the service bar at approximately 4 a.m. On October 18th, he observed three half empty bottles of Heineken beer on a table by the door, as well as a male patron with a bottle of Molson Canadian at approximately 3:04 a.m. The Tribunal makes no finding with respect to the male who Inspector Hetherington observed holding a white plastic cup, as Inspector Hetherington did not give evidence that he checked the contents of the cup.
Section 25(1)
The Tribunal is not satisfied that the Registrar has proven, on a balance of probabilities, that liquor was served after 2 a.m. on August 24, 2014. Although the cold and sweating bottles may be seen as indirect evidence of recently served alcohol, these bottles on the kitchen counter only raised suspicions and without any other supporting evidence, this in itself is insufficient to prove that these bottles were served to patrons. There was also no evidence as to when the two males drinking from bottles of Heineken were served, and the inspectors did not testify that they touched these bottles and that they were cold and sweating condensation.
Section 33(1)
Based on Inspector Hetherington’s evidence, the Tribunal is satisfied, on a balance of probabilities, that on August 27, 2014, the Appellant brought or permitted liquor to be brought onto the premises, which was not purchased at the LCBO, specifically – one bottle of Wray & Nephew Rum with the unit measure of litre on the label and one bottle of Saura Tequilla with a unit measure of litre and a U.S. Surgeon General’s warning on the label. The Tribunal accepts Inspector Hetherington’s evidence that the litre unit of measurement and the U.S. Surgeon General’s warning are not consistent with the labelling of bottles sold by the LCBO.
The Tribunal makes no finding with respect to the bottles which contained a black marking, as the evidence on these bottles was vague. For instance, Inspector Hetherington did not identify the type of liquor contained in the bottles.
The Tribunal accepts Inspector Hetherington’s evidence that receipts for the aforementioned bottles of liquor were requested but not submitted to the AGCO by the Appellant. Mr. Haque acknowledged that he was aware that the AGCO had requested the receipts and testified that he provided them to Hefzul Islam, but acknowledged that he did not witness the receipts being provided to the AGCO. If the bottles had been purchased from the LCBO, the Appellant could have easily resolved this matter in its favour by producing the receipts for the AGCO or the Tribunal.
Therefore, under the heading “Issues”, the Tribunal answers questions 1 and 3 in the affirmative and question 2 in the negative.
ORDER
For the above reasons, the Tribunal finds that the Appellant contravened section 29 and subsection 33(1) of O. Reg. 719/90. The Tribunal dismisses the allegation under subsection 25(1).
The Tribunal invites written submissions on penalty from the parties. The Registrar’s representative shall serve and file written submissions within seven (7) days of the date of this decision. The Appellant’s representative shall have five (5) days after receipt of the Registrar’s submissions to serve and file a written response. The Registrar’s representative may serve and file a reply within two (2) days of receipt of the Appellant’s response .
The parties may file their submission with the Tribunal by mail to 20 Dundas Street West, Suite 530, Toronto, ON M5G 2C2, by fax at 416 314-4270 or by e-mail to LATCorrespondence@ontario.ca. If the Tribunal does not receive the submissions within the aforementioned time frames, it will proceed to make a decision on sanction without any further input from the parties.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel, Member
Released: October 18, 2015