Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 10486/AGRPPA
CASE NAME: 10486 v. Registrar of Alcohol, Gaming and Racing
Appeal from an Order of Monetary Penalty of the Registrar of Alcohol, Gaming and Racing under the Alcohol and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c. 26
70 Down Incorporated o/a 70 Down Appellant
-and-
Registrar of Alcohol, Gaming and Racing Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Appellant: David Winer, Counsel
For the Respondent: Faye Kidman, Counsel Danielle Bastarache, Counsel
Heard in Toronto: January 18, 2017
DECISION AND ORDER
This is a hearing before the Licence Appeal Tribunal (the “Tribunal”) arising out of an Order of Monetary Penalty issued by the Registrar of Alcohol, Gaming and Racing under the Alcohol and Gaming Regulation and Public Protection Act, 1996 (the “Registrar” and the “Act” respectively). The Order, dated September 16, 2016, imposed a monetary penalty of $1,000 on 70 Down Incorporated (“70 Down”) with respect to a contravention of section 29 of Licences to Sell Liquor, R.R.O. 1990, Reg. 719 (the “Regulation”).
The Order alleges that on April 9, 2016 the Appellant failed to clear the signs of service and consumption in the licensed premises within forty-five minutes after the end of the period during which liquor may be sold and served under the licence. 70 Down’s licence allows the service of liquor until 2:00 a.m.
For the reasons below, the Tribunal confirms the Order of Monetary Penalty.
REGISTRAR’S EVIDENCE
The evidence of the Registrar comprised the testimony of Alcohol and Gaming Commission of Ontario (“AGCO”) inspectors Keshia Kalloo and Raman Sharma.
Inspector Keshia Kalloo has been an inspector with the AGCO since 2014. On April 9, 2016, accompanied by Inspector Raman Sharma and a co-op student, Inspector Kalloo conducted an inspection of 70 Down. She is familiar with the establishment, having conducted an estimated 20 previous inspections there.
Inspector Kalloo testified that she arrived at 70 Down at 3:01 a.m. When she first entered the establishment, a male holding a glass with a reddish coloured liquid walked by her at the DJ booth. She did not ask him what was in the glass nor did she smell its contents. She walked to the back of the establishment where she observed a group of approximately four to five patrons sitting at a booth. On the table in front of them were several rocker glasses, some of which were empty, some of which were filled with a reddish coloured liquid. Three mixers, one of which was red, were on the table and she believed that was what the glasses contained. An ice bucket and shot glasses were also on the table along with a bottle of Grey Goose vodka which she identified by its label markings. The bottle had a pour spout in it. She stated that this indicated that patrons were serving themselves at the booth.
Inspector Kalloo did not observe whether the shot glasses contained any liquid; she testified that the fact that the Grey Goose bottle was on the table, even if it was empty, was sufficient to indicate that service had not been cleared. The establishment’s lighting was dim but she could see clearly, testifying that the lighting at this establishment is always dim even when the lights are up.
Inspector Kalloo testified that she saw no staff in the booth area. Owner Wahhab Seddiqi approached the inspection team and Inspectors Kalloo and Sharma had a conversation with him. She indicated that the table could be seen during the conversation. She asked Mr. Seddiqi if he knew what time it was and he replied “it’s late”. She told him that signs of service must be cleared by 2:45 a.m. and he told her that she was right. Mr. Seddiqi then indicated that a major league baseball player had been in the establishment that evening. Inspector Kalloo believes he told her this as a way of explaining why he was open longer that day. She again told him the regulatory requirements for the signs of service to be cleared and he again acknowledged them. She also advised him that 70 Down was on the AGCO’s “RBE list”, which is a list of establishments that are subject to more frequent inspection, and that she would have a local inspector attend to conduct an education session for his staff. She advised that she would be submitting a report that the signs of service had not been cleared. She left the establishment at 3:18 a.m.
On cross-examination, Inspector Kalloo confirmed that she took her notes both during and immediately after the inspection and was referring to them only to refresh her memory. She testified that she used her Blackberry device to confirm the time when she entered 70 Down. She did not record the number of individuals she saw at the booth and did not speak to them. Asked if they could have been drinking water, she agreed they could have; she did not examine or smell the contents of the glasses on the table. She also agreed that the presence of mixers on the table did not indicate a failure to clear the signs of service. She did not smell the contents of the Grey Goose bottle but she noted that if it contained water, as Mr. Winer suggested it could have, this would be a violation of the Act. Inspector Kalloo also confirmed that she saw no signs of service on the bar. Nor did she recall seeing any staff cleaning up the establishment.
Raman Sharma has been an inspector at the AGCO for approximately five years. Referring to his notes to refresh his memory, Inspector Sharma testified that he arrived at 70 Down at 3:01 a.m. on April 9, 2016.
Inspector Sharma testified that upon entering 70 Down he saw an individual at the front of the establishment carrying a glass containing a red liquid. He did not ask what the glass contained. The inspectors went to the