Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2015-11-18
FILE:
9706/LLA
CASE NAME:
9706 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
2336108 Ontario Inc. o/a Queen’s Cave Bar & Patio
Applicant
-and-
Registrar of Alcohol and Gaming
Respondent
DECISION AND ORDER
ADJUDICATOR:
Jacqueline Castel, Member
APPEARANCES:
For the Appellant:
Giuseppe Di Marco, Counsel
For the Respondent:
Rena Khan, Counsel
Heard in Toronto:
October 28, 2015
DECISION AND ORDER
BACKGROUND
2336108 Ontario Inc. (the “Appellant” or the “Licensee”), o/a Queen’s Cave Bar & Patio (the “establishment” or the “premises”), has appealed a Notice of Proposal (the “NOP”) issued by the Registrar of Alcohol and Gaming (the “Registrar”) on July 16, 2015. The Registrar proposed to suspend the licence of the Appellant for 14 days.
The Registrar is alleging that the Appellant failed to post the sign, provided by the Alcohol and Gaming Commission of Ontario (“AGCO”), notifying the public that the liquor licence was under suspension, and failed to ensure that the sign remained posted throughout the suspension period, a violation of subsection 55(1) of Ontario Regulation 719/90, prescribed under the Liquor Licence Act (the “Act”). The Appellant alleges that it did post the sign on the door of the establishment, in accordance with the AGCO liquor inspector’s instructions, and that at some point during the period of suspension the sign fell off the door. As the Appellant chose to close the entire premises and did not attend the premises during the suspension period, the Appellant does not know when the sign fell off the door.
EVIDENCE
The Tribunal entered the NOP and the Notice of Appeal as Exhibits 1 and 2, respectively.
Trevor Joseph, an Inspector with the AGCO, attended the establishment on February 19, 2015 to deliver a suspension placard. The Appellant altered the boundaries of the premises without prior AGCO approval, in contravention of section 49 of Ontario Regulation 719/90, and the Registrar ordered that the Appellant’s licence be suspended for a period of four days, from Monday, February 23, 2015 at 11 a.m. to Friday, February 27, 2015 at 2 a.m. Ms Khan filed a copy of this suspension order, dated February 13, 2015, which the Tribunal entered as Exhibit 3. The suspension placard related to the suspension identified in this order. Ms Khan also filed a copy of a sample suspension placard, which the Tribunal entered as Exhibit 4.
The sample suspension placard was neon yellow and measured 18 by 15 inches. The information written on the placard included: the name of the Appellant, the name of the establishment, the liquor licence number, the period of suspension, and the reason for the suspension. The following wording appeared at the bottom of the placard:
“This notice must be posted in a prominent location, as specified by an Alcohol and Gaming Commission official. Failure to keep the notice in the specified location and in a visible manner during the suspension period will result in further action by the Registrar.”
Inspector Joseph testified that the owner of the premises was not present when he attended with the placard but he gave it to the employee on duty, Mr. Carlos Bettencourt, and instructed him to post the placard on the front door throughout the time period in which the licence is under suspension. Inspector Joseph also testified that he spoke to the owner, Ms Diane Raposo, on the telephone and repeated his instructions regarding the placard to her. Ms Raposo told him that she intended to close the premises during the period of suspension. Ms Raposo and Mr. Bettencourt did not dispute that Inspector Joseph instructed them to post the placard on the door throughout the period of suspension.
Inspector Joseph indicated that he telephoned the establishment on September 20, 2015, spoke to Mr. Bettencourt, and clarified that the placard must be facing outwards so that people walking up to the door could read it. Mr. Bettencourt did not dispute that Inspector Joseph provided this clarification by telephone.
Inspector Joseph testified that he attended the establishment at 3:50 p.m. on February 25, 2015 to ensure that the placard was being displayed according to his instructions. Two gates leading to the door of the establishment were closed and there was a handmade sign on the gate which read: “Closed until Friday 11 a.m”. Inspector Joseph stated that at no time did he communicate to the Licensee that it could post a sign of this nature on the gate. In addition, Inspector Joseph indicated that the AGCO placard was not posted on the front door. As the establishment was closed and the door was locked, he was unable to check whether the placard had been posted and perhaps fell off the door onto the floor. He took six pictures of the front door and entrance gate to the establishment, which Ms Khan filed and the Tribunal entered as Exhibit 5 A-F.
Inspector Joseph attempted to leave a voice-mail message at the premises on Wednesday, February 25, 2015 at 19:35, but the establishment’s voice-mail system had not been set up or enabled. He then logged into the AGCO’s data base of licensees to obtain an alternative number, which he tried but got a message that the number was not in service.
Inspector Joseph stated that he did not attend the premises on any other date or time during the suspension. As such, he does not know whether the placard was posted at other times during the suspension period.
In response to a question from the Tribunal, Inspector Joseph acknowledged that there may have been some issues, associated with the structure of the door, in terms of the placard being able to remain up.
Ms Raposo testified that she did not attend the premises during the suspension period, as she was sick and the establishment was closed. However, she indicated that she instructed Mr. Bettencourt to post the placard in accordance with Inspector Joseph’s instructions. She also testified that her husband was present when Mr. Bettencourt posted the placard.
Ms Raposo indicated that the placard would not be visible from the street, as the establishment is located on the lower level (a grocery store is on the first floor), and there are bars in front of the glass where they were instructed to post the placard.
Ms Raposo indicated that business cards for the establishment, with two telephone numbers, are available in the bar area. Mr. Di Marco filed a business card for the establishment, and the Tribunal entered it as Exhibit 6. The business card shows a telephone number for the establishment and a cell phone number.
Mr. Bettencourt testified that he posted the placard in the middle of the front door, facing outside, using masking tape, on Monday, February 23, 2015. He did not attend the premises again until Friday, February 27, 2015 at around 10 a.m., when he discovered the placard had fallen onto the floor by the door.
Mr. Paul Machado testified that he is a regular customer of the establishment. He indicated that he attended the establishment on Monday and noticed the sign on the front door indicating the establishment was closed. He stated that he photographed the placard with his phone but subsequently deleted the photograph.
THE LAW
The Registrar is alleging that the Appellant contravened subsection 55(1) of the Regulation.
Subsection 55(1) of the Regulation states: “If a licence is suspended, the licence holder shall post a sign provided by the Registrar concerning the suspension and shall ensure that the sign remains posted throughout the suspension period.
The onus is on the Registrar to establish on a balance of probabilities that the Appellant contravened subsection 55(1) of the Regulation.
ISSUE
Did the Appellant fail to post the sign, provided by the Registrar, concerning the suspension, and fail to ensure that the sign remained posted throughout the suspension period?
REASONS
The Tribunal found Inspector Joseph to be a credible witness who had detailed notes of the incident as well as a good independent recollection. He was also forthright in acknowledging to the Tribunal that there may have been some structural issues associated with the door which caused the placard to fall.
The Tribunal also found Ms Raposo and Mr. Bettencourt to be forthright witnesses, who gave evidence which corroborated Inspector Joseph’s testimony regarding their interaction with him.
The Tribunal did not put any weight on the limited evidence of Mr. Machado. His evidence was very vague even though Mr. Di Marco assisted him with leading questions.
Based on the evidence of Inspector Joseph, the Tribunal is satisfied that the placard was not posted on the front door, when he attended the premises on Wednesday, February 25, 2015. Given that Ms Raposo and Mr. Bettencourt testified that they did not attend the premises until Friday, February 27, 2015, when Mr. Bettencourt found the placard on the floor by the door, the Tribunal also finds that the placard was not posted between February 25 (when Inspector Joseph attended) and February 27, 2015.
The Tribunal accepts Mr. Bettencourt’s evidence that he posted the placard in the location designated by Inspector Joseph on February 23, 2015, and at some point prior to the arrival of Inspector Joseph on February 25, 2015, the placard fell off the door. Since the Appellant elected to close the establishment during the suspension period, and neither the owner nor her employee attended the premises during this period, the Appellant did not ensure the placard remained posted throughout the suspension period, a requirement under subsection 55(1) of the Regulation.
The Tribunal makes no finding respecting the handmade “closed” sign on the gate in front of the establishment. There is nothing in subsection 55(1), the only subsection the Appellant was alleged in the NOP to have contravened, which would preclude a licensee from posting signage notifying customers that the premises is closed. Inspector Joseph determined the location he wanted the suspension placard to be posted and provided clear instructions on this matter. Inspector Joseph could have instructed the Appellant to post the placard on the gate or fence, and he also could have given instructions to the Appellant regarding the posting of their own signage; the Appellant disclosed to him that she would be closing the premises, and it should have been reasonably anticipated that the Appellant would post its own signage (in some location) notifying patrons of the closure, given that the suspension placard only applied to the liquor licence.
There may well be an issue associated with the AGCO not having correct contact information for the Appellant, which would have enabled Inspector Joseph to contact Ms Raposo and advise her of his concerns on a more timely basis. However, such an issue was not alleged in the NOP.
DECISION
For the above reasons, the Tribunal finds that the Appellant contravened subsection 55(1) of the Regulation by failing to ensure that the AGCO suspension placard remained posted at all times during the period of suspension.
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 email to LATCorrespondence@ontario.ca. If the Tribunal does not receive the written 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: November 18, 2015