Date: 2018-02-22

Appeal from the Order of Immediate Suspension and Notice of Proposed Order to Revoke a Licence issued by the Registrar of Alcohol, Gaming and Racing under the Liquor Licence Act

Between:

1784476 Ontario Inc. o/a Romby’s Tavern and Smokehouse

Appellant

and

Registrar of Alcohol, Gaming and Racing

Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Darren Swartz, Paralegal Shawn Mason, Paralegal Janice Smith, Paralegal

For the Respondent: Tamara Brooks, Counsel Danielle Bastarache, Counsel

Heard in St. Catharines: November 22, 23, and 27, December 15, 2017

REASONS FOR DECISION AND ORDER:

A. Overview:

1On October 10, 2017 the Registrar of Alcohol, Gaming and Racing (“respondent”) under the Liquor Licence Act, R.S.O. 1990, c. L. 19 (“Act”) issued a Notice of Proposal to Revoke a Licence (“NOP”) proposing to revoke the liquor licence of 1784476 Ontario Inc. operating as Romby’s Tavern and Smokehouse (“Rombys”) and an Order immediately suspending Romby’s liquor licence (“suspension”). The grounds are that the conduct of the licensee affords reasonable grounds for belief that its business will not be carried on in accordance with the law, and with integrity and honesty including that Romby’s obstructed a liquor inspector carrying out an inspection, assaulted him and permitted a patron to remove liquor from the licensed premises. On October 20, 2017, the appellant filed an appeal with this Tribunal.

2The respondent issued an Amended Notice of Proposal to Revoke a Licence dated November 6, 2017 with additional grounds, specifically that the licence holder permitted unlawful gambling on the licensed premises, that the licence holder has been hostile with inspectors, and has admitting to fighting with patrons.

3At the hearing the appellant was given the opportunity to present evidence and make submissions regarding these additional grounds even though an Amended Notice of Appeal had not been filed.

B. PRELIMINARY ISSUE:

4On the first day of the hearing, Romby’s representative asked that I terminate the immediate suspension because the loss of the liquor licence was causing financial hardship. Since the suspension Romby’s has been unable to sell liquor but has been operating as a restaurant. The respondent submitted that I should not make a decision on the suspension without hearing evidence. After considering these submissions, I ordered the suspension extended until the evidence had been presented at which time submissions would be heard on whether the suspension should be extended until this decision is released.

C. ISSUES TO BE DECIDED:

5The issues to be decided are as follows:

1. Did Romby’s obstruct a person carrying out an inspection under the Act contrary to s. 45(1) of the Act, assault an inspector, be hostile with inspectors and admit to fighting with patrons?

2. Did Romby’s permit a patron to remove liquor from the licensed premises contrary to s. 34(1) of Ontario Regulation 719/90 (“the Regulation”)?

3. Did Romby’s permit unlawful gambling on the licensed premises or adjacent areas under the exclusive control of Romby’s contrary to s. 45(1) of the Regulation?

4. Does the conduct of Romby’s afford reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty?

5. If so, is revocation of Romby’s licence appropriate?

D. CONCLUSION:

6For the reasons that follow, I am satisfied on the evidence that there are sufficient grounds for the proposed revocation of Romby’s licence. Accordingly, I order the Registrar to carry out the NOP. The suspension is no longer required.

E. LAW:

7Under s. 15 (1) of the Act, the Registrar may issue a proposal to revoke or suspend a licence to sell liquor 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 the Act, the regulations or a condition of the licence.

8Under s. 6 (2) (d) of the Act an applicant is entitled to be issued a licence to sell liquor except if the applicant’s past or present conduct affords reasonable grounds for belief that the person will not carry on business in accordance with the law and with integrity and honesty. In the case of a corporation, section 6 (3) of the Act extends the application of s. 6 (2) (d) to an officer, director, a person interested in the business and a person having responsibility for the management or operation of the business.

9If a notice to suspend or revoke a licence is issued, the licensee is entitled to request a hearing before the Tribunal pursuant to s. 21(4) of the Act. At the Tribunal hearing, the onus is on the respondent to prove that there are grounds to revoke or suspend the licence. Pursuant to s. 23(11) of the Act the Tribunal may direct the Registrar not to carry out the proposal or may direct the Registrar to carry out the proposal, in whole or in part, and with any changes that the Tribunal considers appropriate.

E. EVIDENCE AND ANALYSIS:

1. Did Rombys obstruct a person carrying out an inspection under the Act contrary to s. 45(1) of the Act, assault an inspector, be hostile with inspectors and admit to fighting with patrons?

10Under s. 45(1) of the Act, no person shall obstruct a person carrying out an inspection under the Act. Under s. 45(2) of the Act, it is a condition of each licence issued under the Act that the licensee facilitate an inspection. I find that there is ample evidence before me that Romby’s obstructed Inspector Black in carrying out his inspection on October 5, 2017 contrary to s. 45(1) of the Act. On October 5, 2017 at approximately 1:45 a.m. liquor inspector Justin Black was driving to another inspection when a bus caught his attention as it pulled into the plaza where Romby’s is located. Inspector Black saw a male exit the bus with a Budweiser bottle and drink what was in the bottle. The man entered Romby’s with the beer which is an infraction under the Regulation. He followed the man into Romby’s where he saw the man put the bottle in an empty case, accept a full beer from another male and leave Romby’s with the beer. Inspector Black followed the man outside.

11Inspector Black re-entered Romby’s and observed some 14 people for signs of intoxication. He identified himself and told the bartender C.C. that he saw a man from the bus walk into Romby’s with a beer bottle and watched the man leave with a full beer. C.C. told the inspector he didn’t see the man bring a bottle into Romby’s or leave with a beer bottle. While speaking with C.C., the inspector noticed A.W. walking by and asked to speak to her. She had identified herself previously to him as manager. He wanted to make sure the infractions were passed on to the appropriate persons. They spoke at the north end of the bar area because a lot of people were watching and listening and the inspector wanted to have a confidential discussion.

12As they were speaking, a man walked up to Inspector Black at a fast pace to his left. The man was aggravated and aggressive, and he started to yell and scream. The man did not introduce himself. The inspector did not know who he was. A.W. did not introduce him. Inspector Black identified himself and explained why he was there. The man said he had received papers that day that Romby’s would be getting a 14-day licence suspension. The inspector said he was not aware and was there because of his observations that day.

13The inspector described the man as being in an elevated emotional state, making lots of forceful arm movements including hand motions in the inspector’s face. The man slammed his open fist on the table, moved a chair and stood directly in front of the inspector. The man said “What the hell is it now. This is bullshit. Now you are here jamming me up for this bullshit”. The man took a lanyard from around his neck and threw it across the table tops in anger. The inspector asked him to calm down. He was worried that the situation might escalate or that one of the others in the bar might become aggressive. The man said he was at a bar earlier that evening which had forms for a football pool they were running and the house was taking ten percent. He said he was upset with the 14-day suspension and the other bar was doing this without intervention. He said “it’s bullshit that we’re being penalized for running a football pool to raise money for local charities”. Inspector Black asked the man to name the other bar but he said he wasn’t going to be a rat and do their job for them.

14The man got close to him, grabbed the chest area of his jacket with two hands and said “You guys are fucking killing me with this shit.” He said it wasn’t worth it to have a licensed establishment and he was fed up with owning a licensed establishment. He said he felt like Romby’s was being picked on and if Inspector Black had been 20 seconds earlier or later, he would not have seen the bus incident. Inspector Black was surprised as he had never been grabbed by a licensee and was nervous about what possibly might be next. Inspector Black swept the man’s arms off his chest and told him he was not to put his hands on him again, not to touch him and told the man he needed to calm down. The inspector did not leave immediately as he was worried that he would be followed out. No one else tried to calm the man down. The man was still upset, frustrated and continued to talk about his frustration in trying to run a family business. The man said that he has had fights keeping drug addicts and undesirables out. Inspector Black explained that the infractions would be sent to a supervisor for review and disposition. The man said “Oh great – will probably turn into another suspension”. Inspector Black left it that the man could contact him later if he wanted to provide the names of other establishments that were breaching the Regulation. Inspector Black left Romby’s at approximately 2:29 a.m. He made notes about the incident at approximately 3 a.m. and testified with the aid of his notes. The incident was also recorded on video by Romby’s and played at the hearing. Inspector Black testified that he now knows the man is Robert Wilson and he identified Mr. Wilson in the hearing room. Later the same day, he reported the incident to his supervisor and a written report was made.

15There is also evidence that Mr. Wilson has engaged in similar conduct during prior inspections by AGCO inspectors. Chief Inspector Trachsler testified that he and another inspector conducted a count of patrons at Romby’s on March 17, 2016 which showed Romby’s to be overcrowded. When this was discussed with Mr. Wilson, he demanded they do another count. When told the count had been done twice and would not be done again, Mr. Wilson got upset, mad and said in a raised voice that this is “bullshit”. He knows the “bullshit” and it is the “same old thing every time”. He continued to interrupt the inspectors who were attempting to educate and reason with him. Mr. Wilson said “I don’t wanna hear it, this is bullshit…I know, go write your report….Look, there’s no blow, no fights, so what?” This was recorded in the inspectors report.

16Inspector Brian Sharpe testified that he conducted an after-hours inspection at Romby’s on February 27, 2016. He observed someone drinking from a bottle of beer, and saw an empty beer bottle and glass on the table at 3:07 a.m. indicating the tables were not cleared as required. He spoke to Mr. Wilson to advise him of the infractions. Mr. Wilson became agitated and upset and said “This is bullshit – we cleared all the blow out of the bar and you are going after us for this”. “Blow” was understood by me to mean an illegal drug. Mr. Wilson twice asked Inspector Sharpe to look past this. The inspector said he has to report all findings. On September 24, 2016 Inspector Sharpe inspected Romby’s outdoor event conducted under a catering endorsement. The licence was not posted as required. When the inspector brought this to Mr. Wilson’s attention he said he would put his phone up because there was a copy on his phone. Inspector Sharpe thought was unrealistic and told Mr. Wilson to make a copy and post the licence.

17Chief Senior Inspector Brad Foster testified that liquor licensing depends on a relationship with licensees which is cordial and professional. Spot inspections occur when an inspector goes out on the night shift and they see something. He expects his inspectors to take steps to get further information if an infraction is suspected. Chief Foster is aware that Inspector Black while in his area, driving by Romby’s, observed a situation outside of Romby’s that led him to believe an infraction could have occurred, and he went into the establishment and reported that he was assaulted. The report was made by Inspector Black at approximately 1 p.m. on October 5, 2017. The actions of Mr. Wilson changed the outcome of what the AGCO was doing to address the football pool issue. Physical action toward an inspector, means AGCO can no longer maintain compliance and there is a public safety issue. The relationship between the licensee and inspectors has been broken.

18Mr. Wilson testified that he is a shareholder, treasurer and acting manager of Romby’s. He had gone to a concert with others on a bus to celebrate his wife’s birthday. The bus got back to Romby’s at 1:44 a.m. on October 5, 2017. He admitted that he had been drinking before he interacted with Inspector Black. Mr. Wilson saw someone talking to C.C. and assumed this was a liquor inspector. He watched C.C. and the inspector shake hands and then saw the inspector talking to his wife A.W. Mr. Wilson admitted that when he approached the inspector he said “What the hell are you getting us for now”. The liquor inspector introduced himself. Mr. Wilson had received that day a Notice of Proposal to temporarily suspend Romby’s licence because of the football pools. Mr. Wilson said he couldn’t understand how the liquor inspector didn’t know about this and he didn’t want to listen to the inspector’s explanation. He asked what makes a pool legal. The inspector told him that a pool is legal if 100 percent of the money that is received by the pool is paid out to the participants. However, Mr. Wilson did not believe that explanation.

19Mr. Wilson admitted that he threw the lanyard and touched the inspector’s jacket. He testified that when he made contact with Inspector Black’s jacket, this was not an aggressive action. It was a plea. He was pleading with him “not tonight”. Mr. Wilson said he was frustrated but not angry. His wife and his sister were there. He let go right away when Black said “don’t touch my jacket” and they talked for about another 20 minutes. Inspector Black didn’t say Mr. Wilson had assaulted him. The inspector did not call the police. The first he knew of the alleged assault and hostility was when he got the NOP. He said he wished he didn’t lose his composure with Inspector Black. He now understands that it wasn’t Inspector Black’s fault that he didn’t know about the other matter and he apologized to Inspector Black.

20Mr. Wilson described himself as a physical guy and said he ordinarily touches others in the bar. He said he has tried to be compliant with the Act, has corrected the clock in the kitchen, hired a doorman to count, hired an experienced bartender, and provided training to employees. Mr. Wilson denied that he has had fights with clientele. He said he has just thrown people out. He said he told Inspector Black about an incident that occurred in 2012. He asked some patrons doing cocaine to leave Romby’s and was hit over the head with a beer bottle, removed in an ambulance and received five staples to his head.

21Mr. Wilson said he is a responsible licence holder but admitted that he did not post his phone or the licence at the outdoor event because he forgot. He admitted he was “pissed off” with the overcrowding situation in March 2016 and took it out on Chief Inspector Trachsler and his co inspector. Mr. Wilson testified that he doesn’t mind when an inspector tells him about infractions but admits saying “this is bullshit” and the “same old thing” and “go write your report” to inspectors. He admitted saying to Inspector Black “This is bullshit” and “You guys are fucking killing me with this shit”. In my view this is not appropriate. Mr. Wilson admitted that he joined a highly regulated industry when the licence was obtained, understands the licensee will be cited if infractions are found, and that he doesn’t like being told he has made mistakes. He admitted asking Inspector Sharpe to look the other way and not cite infractions during his inspection. Mr. Wilson said that he does not swear at people with malice but in hindsight recognizes this is not a respectful way to deal with those in authority. Mr. Wilson admitted telling Inspector Black he “didn’t want to hear it” or listen to the inspector when told a patron left with a bottle of beer. He agreed that there has to be a relationship with the regulator. He admitted he told Chief Foster that he “lost it” with Inspector Black. He admitted that someone else called the police in the altercation with the Romby’s patron in 2012 because he was out cold.

22Mrs. Wilson and S.T., Mr. Wilson’s sister were both present during the interaction between Mr. Wilson and Inspector Black at Romby’s. Both said they saw Mr. Wilson touch Inspector Black’s jacket and heard Mr. Wilson swear at the inspector. Mrs. Wilson confirmed he was frustrated and angry.

23There is ample evidence that Romby’s obstructed Inspector Black in carrying out his inspection on October 5, 2017 contrary to s. 45(1) of the Act including the following: Inspector Black described that Mr. Wilson yelled and swore at him, threw the lanyard from around his neck across the table tops, made aggressive motions with his arms in the inspector’s face and grabbed him by the jacket in the chest area. The inspector’s testimony is corroborated and recorded in his report and in his notes. The video which was introduced into evidence by Romby’s shows Mr. Wilson’s aggressive actions and motions toward Inspector Black. Romby’s, through the actions of Mr. Wilson, obstructed the inspector in carrying out his inspection by standing in front of him, swearing directly into his face, waving his arms in an aggressive manner and by grabbing him by his jacket in an aggressive and possibly threatening manner. All of these actions undermine the inspector’s authority and ability to carry out the inspection, put the inspector at risk of harm from Mr. Wilson and raise an issue of public safety. Mr. Wilson’s actions also clearly demonstrate his anger, hostility and lack of respect for the statutory inspection process and the inspectors who are tasked with them. Mr. Wilson argues he did not assault Inspector Black, only grabbed him by the jacket, that the police were not called and no criminal charges resulted. Even if Mr. Wilson’s argument could be accepted that he did not assault the inspector, his actions obstructed the inspection. However, on the evidence before me, it is more likely than not that he touched the inspector when he grabbed Inspector Black’s jacket with both hands. Touching another person without their consent is an assault. It is not relevant that Inspector Black did not call the police and no criminal charges were laid. Inspector Black reported the incident to his superiors. An inspector is entitled to be treated with respect, courtesy and without apprehension of being touched while carrying out an inspection under the Act. The Act not only prohibits obstruction but imposes a positive duty on all liquor licensees to facilitate an inspection because s. 45(2) provides it is a condition of each licence issued under the Act that the licensee facilitate an inspection. The behaviour of Mr. Wilson toward Inspector Black on October 5, 2017 at Rombys contravenes not only s. 45(1) but also likely s. 45(2) of the Act.

24The evidence is also clear that Mr. Wilson has in the past expressed hostility to not only Inspector Black but other inspectors by swearing at them and asking one of them to look past infractions. Mr. Wilson admits this behaviour. He denies fighting with patrons but does admit that he was attacked on at least one occasion where an ambulance had to be called. There is insufficient evidence about this incident to find that Mr. Wilson has been fighting with patrons.

2. Did Romby’s permit a patron to remove liquor from the licensed premises contrary to s. 34(1) of Ontario Regulation 719/90?

25Under s. 34(1) of the Regulation the licensee shall not permit a patron to remove liquor from the licensed premises. I find that Romby’s permitted a patron to remove liquor from Romby’s contrary to s. 34(1) of the Regulation. The evidence is clear from both parties that this occurred. Inspector Black testified that he saw a man from the bus walk into Romby’s with a beer bottle and watched the man leave with a full beer. This is corroborated by C.C. who testified that he did not see the patron leave with the beverage or he would have stopped him. He admitted he knows a bartender should pay attention to people leaving the bar with beverage but it was late at night and he missed one. Romby’s argues that by posting a sign on the interior door that no drinks are permitted beyond that point, the licensee took all reasonable steps to ensure drinks were not removed from Romby’s. The legal requirements of the Regulation must be viewed in factual context. While posting signage is a good start, this does not relieve Romby’s of its duty to stop a patron leaving the licenced premises with alcohol. Rombys failed to monitor the exit door and the patron sufficiently to ensure that alcohol was not removed from the premises. This is clear from C.C.’s testimony that he did not see the infraction witnessed by the inspector.

3. Did Romby’s permit unlawful gambling on the licensed premises or adjacent areas under the exclusive control of Romby’s contrary to s. 45(1) of the Regulation?

26Under s. 45(1) of the Regulation the licensee shall not permit unlawful gambling to occur on the premises or in the adjacent washrooms, liquor and food preparation areas and storage areas under exclusive control of the licence holder. I find that the respondent has proven that Romby’s permitted unlawful gambling on the licensed premises contrary to s. 45(1) of the Regulation. The testimony of Chief Foster that the Rules of Play provided for a buy in from the patron and a pay-out prize utilizing football as a mixed game of skill and chance was credible, corroborated by Inspector Sharpe and established the three elements required for the definition of gambling set out in Com. & .Play Café, Inc. (c.o.b. Vivid Bar Lounge) (Re), [2010] O.A.G.C.D. No 283, namely a fee to play, game of mixed chance and skill, and prize or reward. Romby’s called no evidence to refute the testimony of Chief Foster and his staff. Romby’s representative in closing submissions indicated that 100% of the monies collected were not directed to the winners. A review of the documents indicated that not all monies were being directed to the winners. Evidence established that some of the funds were used to pay for appreciation parties, Thanksgiving party and photocopier supplies.

27Chief Foster testified that the AGCO received a complaint from the public regarding an illegal football pool at Romby’s. Inspector Sharpe went to Romby’s on January 31, 2017 to obtain football pool documents and to advise Mr. Wilson of the complaint. Mr. Wilson provided 2016 and 2017 documents about the different types of football pools, names, rules of play and from the documents provided it was evident to Chief Foster that illegal gambling was being carried on at Romby’s because the Rules of Play provided for a buy in from the patron and a pay-out prize utilizing football games as the game of chance. He testified that the football itself is a mixed game of skill and chance. Inspector Sharpe reviewed the documents and concluded $4,580.00 was taken in and not paid out.

28On March 10, 2017 Chief Foster and Inspector Sharpe met with Mr. Wilson and P.W. at Chief Foster’s regional office. Inspector Sharpe explained that the reason for the meeting was that they wanted to go through and understand the paperwork regarding the football pools. Wilson and P.W. admitted the buy in and payout based on football as the game of chance and also admitted some buy in money was used by Romby’s to fund an appreciation dinner and expenses. P.W. kept the money at his home and estimated that the weekly pool collects some $4,500.00. Out of this he said $400.00 to $500.00 is given to a charity and the rest of the money is paid out to the weekly winner. No tax receipts were provided from the charities and no list of charities was given. After the meeting, Chief Foster was completely satisfied that unlawful gambling under the Act was occurring, a report was prepared and superiors notified. A Notice of Proposal to temporarily suspend Romby’s licence was sent to Romby’s before Inspector Black’s inspection on October 5, 2017.

29Inspector Sharpe testimony was consistent with that of Chief Foster. He went to Romby’s on January 11, 2017. Mr. Wilson was not present but advised by telephone that the inspectors should speak with P.W. P.W. said there was a 100 percent payout and that he kept the books at home. A written demand for documents was left with him. Inspector Sharpe told P.W. that they were looking for money in and money out and how the game was played. P.W. told him they don’t keep anything. Inspector Sharpe testified that the AGCO direction is that one should speak with legal counsel prior to conducting sports pools as it is a problem to take money from the pool. Mr. Wilson said he understood and just wanted to do the right thing. Inspector Sharpe found in the documents some $4,458.00 not paid out but used for appreciation parties, a Thanksgiving party, and photocopier supplies. He didn’t recall any reference in the documents to payments to charities. On March 17, 2017 he met with Mr. Wilson and advised him of the infraction.

30Mr. Wilson admitted Romby’s has had football pools since 2015. He identified the 2015 Rules of Play at the hearing. He said he had no idea if the football pool was ok or not but he understands he is responsible for it. Mr. Wilson said football pools are still being carried on at Romby’s.

4. Does the conduct of Romby’s afford reasonable grounds for belief that its business will not be carried on in accordance with the law and with integrity and honesty?

31I find that respondent has proven that Romby’s obstructed Inspector Black in carrying out his inspection under the Act contrary to s. 45(1) of the Act, assaulted Inspector Black, has been hostile with inspectors, permitted a patron to remove liquor from the licensed premises contrary to s. 34(1) of the Regulation and permitted unlawful gambling on the licensed premises contrary to s. 45(1) of the Regulation. The totality of this past conduct of Romby’s affords reasonable grounds for belief that Romby’s’ business will not be carried on in accordance with the law and with integrity and honesty.

5. If so, is revocation of Romby’s’ licence appropriate?

32I am satisfied that revocation of Romby’s licence is appropriate given the seriousness and escalating pattern of behaviour of Mr. Wilson toward inspectors and in failing to comply with the Act and Regulation. Romby’s’ many prior infractions show a disregard for the law. Romby’s argues that the licence has already been suspended since October 10, 2017 and this is causing a financial burden on Romby’s. The respondent argues that the private interest of Romby’s does not outweigh the duty of Romby’s to comply with the Act and Regulation especially where there is an issue of public safety. Romby’s has chosen to allow Mr. Wilson to manage its business even though his past conduct demonstrates that he does not have the necessary respect for the regulatory scheme and the composure or will necessary to comply with the Act and Regulation. In doing so, Romby’s has put the public safety at risk.

33The respondent submitted that the licence should be revoked because this is an issue of public safety. The appellant submitted that the public interest is not at risk because the suspension was originally made in respect of a case which was mischaracterized. The appellant also argued that the licence had already been suspended for 66 days at the time of the hearing which is disproportionate to the allegations the respondent has put forward at the hearing. Mr. Wilson admitted that he grabbed Inspector Black’s jacket on October 5, 2017. This admission gives me enough concern for the safety of the public that I am of the view the licence should be revoked. The fact that the licence had been suspended for 66 days at the time of the hearing is not sufficient reason to disregard the safety of the public nor is it disproportionate to the behaviour to which Mr. Wilson has admitted.

34Both parties submitted that there are no conditions that would be appropriate to attach to the appellant’s liquor licence. I agree. The behaviour of Mr. Wilson toward the inspectors escalated from swearing and asking an inspector to look the other way to physical aggression and touching of Inspector Black. I am not confident that Romby’s has made any commitment to a change in behaviour.

F. ORDER OF IMMEDIATE SUSPENSION:

35The parties were informed at the end of the hearing that the suspension would remain in effect until the decision is released.

ORDER:

For the reasons set out above I order the Registrar to carry out the Amended Notice of Proposal to Revoke a Licence dated November 6, 2017. The suspension is no longer required.

LICENCE APPEAL TRIBUNAL

_____________________________

Avril A. Farlam, Vice-Chair