Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9646/AGRPPA
CASE NAME: 9646 v. Registrar of Alcohol and Gaming
Appeal from an Order of Monetary Penalty of the Registrar of Alcohol and Gaming under the Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c. 26
Niagara-on-the-Lake Chamber of Commerce Appellant
-and-
Registrar of Alcohol and Gaming Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Appellant: Janice Thomson, Agent
For the Respondent: Joyce Taylor, Counsel Faye Alipour, Student-at-Law
Heard in Niagara Falls: September 29, 2015
REASONS FOR DECISION AND ORDER
1The Appellant, Niagara-on-the-Lake Chamber of Commerce, appeals Order of Monetary Penalty #107 in the amount of $1,500.00 issued pursuant to the provisions of the Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c. 26 (the "Act"). The allegations arise out of the Niagara-on-the-Lake Ice Wine Festival held each January on Queen Street, the main street of Niagara-on-the-Lake. During the 2015 Festival, a Special Occasion Permit was issued for a licensed area along Queen Street between King Street and Regent Street. The Registrar of Alcohol and Gaming (the "Registrar") alleges that the Appellant permitted the removal of alcoholic beverages, served on the premises, from the licensed area contrary to O. Reg. 389/91.
2On January 17, 2015, at approximately 2:05 p.m., two AGCO Inspectors Michael Langelaan and Brian Sharpe attended the Festival together in their official capacity. They testified that they arrived together, walking up King Street towards one end of the licensed area. As they approached Queen Street, about 150 feet from the intersection of King Street and Queen Street, they saw a man walking towards them on the sidewalk carrying a wine glass that contained what appeared to be white ice wine. The glass carried the Festival logo and was the type of glass given out to consumers when purchasing ice wine.
3On reaching the corner, the two inspectors noted that the licensed area was cordoned off with four A-frame barriers. Inspector Sharpe noted that they were similar to sawhorses. He thought each was about seven feet long and Inspector Langelaan's view was that each was about four feet long. They did not block the whole road. There was one security guard on duty standing beside one of the barriers. Inspector Sharpe described him as being nearly in the middle of the road. At least part of the time, his back was to the sidewalk. Inspector Sharpe then walked through the Festival grounds. He described it as a "nice family event". When he reached the Regent Street end of the licensed area, he noted that there was one security guard on the opposite sidewalk wearing a bright yellow jacket. He saw no Festival volunteers or staff at either exit from the area.
4By 2:20 p.m., Inspector Sharpe had rejoined Inspector Langelaan at the King Street entrance. There is no specific evidence concerning Inspector Langelaan's movements between arrival and 2:20 p.m.; however, while standing on the sidewalk with Inspector Sharpe at 2:20 p.m., he and Inspector Sharpe saw two women leaving the licensed area with Festival logo glasses containing what appeared to be red ice wine. The women crossed King Street and walked in the direction of the Prince of Wales Hotel. The security guard had his back to the sidewalk where the women left the licensed area so he did not see them. The inspectors then talked to the security guard about the women and his work that day. The security guard stated that he was the only person responsible for the King Street end and had not been relieved all day.
5After talking with the security guard, the inspectors walked down Queen Street to Regent Street. The security guard with the yellow jacket was not there. They saw a young woman apparently exercising a security function. Inspector Sharpe noted that she was wearing a purple coat without any insignia to indicate she was a security guard. The inspectors saw two women leave the licensed area at the Regent Street end with Festival logo glasses with a "mouthful" of what appeared to be ice wine in each glass.
6The inspectors then went to meet with Janice Thomson, the Executive Director of the Chamber of Commerce and the person responsible for administering the Special Occasion Permit. They discussed their findings with her and then left around 3:05 p.m.
7In her testimony, Janice Thomson outlined the history and success of the Festival. It has been held for the last 21 years and draws many people to Niagara-on-the-Lake. The Festival is an opportunity for local wineries to showcase their products. Twenty-seven wineries participate as well as fifteen high-end local restaurants. It is a wine sampling event so serving quantities are limited to one fluid ounce servings, that amount being marked with a line on the glass. Despite observing such behaviour from patrons herself, she did not believe that many people would walk around the licensed area or attempt to leave the licensed area with drinks in their glasses. She was of the view that the inspectors were mistaken in their observations. She did testify that she manned the two side alley entrances to the parking area and the public toilet and had to stop patrons trying to exit with drinks in their hands, yet felt it was not possible for other patrons to attempt the same behaviour at the main access points. The balance of her evidence was directed at the security arrangements: two paid duty police officers, two security guards present at all times and four Niagara College Justice Program students. She felt that there was adequate staff to supervise the approximately 2,500 attendees on that day.
ANALYSIS
8S. 14.1(7) of the Act directs the Tribunal to determine if, on a balance of probabilities, the alleged infraction occurred. If the Tribunal finds that it did, it has no discretion to alter the amount of the monetary penalty. The substance of the submissions put forward by the Appellant, if not the letter of those submissions, allude to the fact that the Appellant exercised diligence in attempting to ensure that patrons did not exit the area with alcoholic beverages.
9Licensing pursuant to a Special Occasion Permit is governed by Ontario Regulation 389/91. The relevant section is subsection 26(2) which states:
(2) Subject to section 34.1 of Regulation 719 of the Revised Regulations of Ontario, 1990 (Licences to Sell Liquor) made under the Act, the permit holder shall ensure that no liquor sold or served on the premises to which the permit applies is removed from the premises by a person attending the event.
For the sake of completeness, subsection 34.1 provides that patrons in one licensed area may carry liquor into a contiguous licensed area provided both licensees agree. Its provisions are not in issue in this appeal.
10The Tribunal notes that neither inspector stopped exiting patrons to verify that the contents of their glasses were, in fact, ice wine. Rather, they concluded from the colour of the liquid and the fact that it was in an ice wine sampling glass, that it was ice wine. Is this sufficient for the Tribunal to determine that the infractions occurred? The standard of proof is on a balance of probabilities, a standard that has been expressed in terms of an event being more likely than not to have happened. The patrons in question were leaving an area where ice wine was served in some quantity. They carried logoed ice wine glasses. Inspector Sharpe testified that he was unaware of any other beverage being served. It is thus more likely than not that the liquid in the glasses of exiting patrons, observed by the inspectors, was ice wine.
11The Tribunal declines the Appellant's invitation to find that the inspectors were in error in their observations. The evidence discloses that they were well positioned to make the observations they did. The observations were made in full daylight at 2:00 p.m. and there was no evidence of obstructions to their ability to see the events about which they testified.
12There was no allegation by the Registrar that the Festival was poorly run. Indeed, Inspector Sharpe described it in glowing terms. Ms. Thomson's evidence indicates that some measure of forethought was put into security measures. Unfortunately, those security measures were insufficient to prevent the removal of alcoholic beverages from the licensed area. In particular, both inspectors noted that the security personnel at the exits had a very wide area to police and in at least one incident, were unable to act because the removal took place behind the security guard's back.
13In light of all of the evidence, the Tribunal finds that the Appellant was in breach of its obligations under subsection 26(2) of O. Reg. 389/91.
ORDER
14Pursuant to the authority vested in it by the provisions of s. 14.1(7) of the Act, the Tribunal confirms Order of Monetary Penalty #107, dated June 8, 2015, in the amount of $1,500.00.
LICENCE APPEAL TRIBUNAL
D. Gregory Flude, Vice-Chair
Released: October 28, 2015