Citation: Ramirez v. Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 2022 ONLAT 13639 LLA

Released Date: 06/03/2022

Licence Appeal File Number: 13639/LLA

Appeal from an Order of Monetary Penalty issued by the Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996

Between:

Oscar David Gutierrez Ramirez o/a Paradise Night Club (The)

Appellant

And

Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act

Respondent

DECISION AND ORDER

ADJUDICATOR:

Avril A. Farlam, Vice Chair

APPEARANCES:

For the Appellant:

Mark Gebriel, Paralegal

For the Respondent:

Jordan Stewart, Counsel

Tiana Knight, Student-at-Law

Heard By Way of Videoconference

May 12, 2022

REASONS FOR ORDER

BACKGROUND

1Oscar David Gutierrez Ramirez (“appellant”) owns and operates The Paradise Night Club. He appeals the Order of Monetary Penalty #1123959 dated October 12, 2021 (“OMP”) in the amount of $1,500.00 made under section 14.1 of the Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996, S.O. 1996, c. 26, Sched. (“ACGRPPA”). The OMP alleges that the appellant contravened s. 43 of Ontario Regulation 719/90 (the “Regulation”) made under the Liquor Licence Act, R.S.O. 1990, c. L.19 (the “Act”) on August 8, 2020 by allowing approximately 39 persons on a patio licensed for 10 people at 44 Talbot Street West, Leamington, Ontario (the “premises”).

2The appellant denies the allegations in the OMP.

PRELIMINARY ISSUE – APPELLANT’S REQUEST FOR ADJOURNMENT

3The appellant orally requested an adjournment at the start of the hearing because his legal representative was retained at 5:00 pm the day before the hearing and has not had enough time to prepare for this hearing or to submit documentary evidence. No written material was filed on the motion. The appellant submitted that his motion was brought as fast as possible, that his difficulty in securing legal representation is outside his control and an adjournment would not significantly delay the Tribunal. The appellant concedes that the respondent’s witnesses are present at the hearing and ready to proceed but submits that because this is a virtual hearing, the respondent’s witnesses would not be significantly inconvenienced by an adjournment.

4The respondent submitted that its position has not changed since the appellant’s adjournment request made earlier. The respondent concedes there would be no prejudice to the respondent but asks that any adjournment be made peremptory on the appellant. The appellant indicated it agreed to the next hearing date being made peremptory on it.

5The appellant’s oral motion for an adjournment was denied at the hearing for reasons given orally at the hearing and summarized here.

6This hearing was previously adjourned in March, 2022 at the request of the appellant.

7This adjournment request is the third adjournment request by the appellant and the second adjournment request made this week. All adjournment requests were made because of the appellant’s difficulties in retaining legal representation. The appellant’s second adjournment request was fully and fairly canvassed and denied on May 11, 2022 with written reasons. The appellant retained its current legal representative on May 11, 2022. Despite this, the appellant has again today requested an adjournment for the purpose of accommodating his legal representative.

8Although the respondent does not oppose the adjournment, this is not determinative for the Tribunal.

9Continued adjournment requests frustrate the Tribunal’s ability to ensure timely resolution of proceedings before it as mandated by Rule 3.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, effective October 2, 2017, amended February 7, 2019, (the “Rules”).

10In this instance, the Tribunal’s hearing schedule and fulfillment of its mandate cannot be dictated by the wish of the appellant’s legal representative to have more time to prepare. If a legal representative takes on a matter, then they must be able to deal with it. Many Ontarians are waiting to have their cases heard by the Tribunal and I am not prepared to cancel today’s hearing given that as recently as yesterday the appellant knew the Tribunal denied its second request for an adjournment.

11Today the appellant appeared with another legal representative, Mr. Gebriel and requested this third adjournment. The respondent’s witnesses are here. Mr. Gebriel confirmed that he has received the respondent’s disclosure. The matter in issue is $1,500.00. I am not persuaded that an adjournment is warranted.

12It was up to the appellant to ensure that he had legal representation. The appellant retained legal representation, Mr. Gebriel, who is present but asks for more time to prepare, which suggests to me that the appellant has not made reasonable efforts to retain legal representation able to deal with this matter. There is no automatic right to an adjournment.

13The matter will proceed today. Mr. Gebriel has undertaken to file a Declaration of Representative and, on that basis, he will be allowed to represent the appellant in this hearing as he requests now that the adjournment has been denied.

ISSUE

14The issue in this appeal is whether the appellant contravened the Regulation on August 8, 2020 by allowing more than 10 people on the patio at the premises which is licensed for 10 people.

RESULT

15I confirm the OMP of $1,500.00.

LAW

16The OMP is dated October 12, 2021 and was issued because the respondent determined that the appellant contravened s. 43 of Ontario Regulation 719/90 under the Liquor Licence Act, R.S.O. 1990, c. L.19 (the “old Act”) which requires that a licence holder ensure that the number of persons on the premises to which the licence applies does not exceed the capacity of the licensed premises as stated on the licence.

17On November 29, 2021, the old Act was repealed and the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22 (the “new Act”) came into force, s. 80 of which provides that a liquor licence issued under the old Act continues under the new Act. Further, on November 29, 2021, the ACGRPPA was revoked.

18The new Act continues the requirement that the holder of a licence ensure that the number of persons on the licensed premises does not exceed the capacity stated on the licence. Specifically, Standard 6.1 of the Registrar’s Interim Standards and Requirements for Liquor made under the new Act provides that the licensee shall ensure that the number of persons on the premises to which the licence applies does not exceed the capacity of the licensed premises as stated on the licence. The new Act also established a new schedule of monetary penalties.

19The respondent submits that the new Act and its requirements as to the licensee’s obligations regarding capacity of the licensed premises are the same as the under the old Act and therefore the appellant’s obligations continue under the new Act. The appellant made no submissions regarding the change in legislation.

20I accept the respondent’s submission that the OMP is continued under the new Act and the requirement for proof remains on the respondent on a balance of probabilities.

21The onus lies with the Registrar to prove, on a balance of probabilities, that there has been a contravention of these sections of the Regulation.

22After a hearing of an appeal, under s. 14.1(7) of the ACGRPPA, the Tribunal may confirm or set aside the OMP, but has no jurisdiction to vary the amount of the OMP. If the Tribunal determines that the appellant exceeded the capacity on its licence by any amount, the Tribunal must confirm the OMP.

EVIDENCE AND ANALYSIS

23After considering the totality of the evidence and considering the submissions and cases put forward by the parties, I find that the respondent has met its burden of proof to establish that the appellant contravened the Regulation on August 8, 2020 by allowing more than 10 people on the patio at the premises licensed for 10 people. The following are my reasons.

The Appellant allowed more than 10 people at on the patio of the premises

24Catherine Bird, an experienced AGCO inspector testified that on August 8, 2020 at 22:18 (10:18 PM) she inspected the patio at the premises following a police report and a complaint regarding over-capacity of the patio. Inspector Bird had been to the premises on a previous occasion. Although she had inadvertently left her mechanical counter in her motor vehicle, Inspector Bird testified that she made a decision not to retrieve it but instead to count without it. Inspector Bird counted from the sidewalk. Inspector Bird testified that the patio was well lit, the persons on the patio were all seated and she was confident that she counted the persons correctly, remembered the number and noted it when she returned to her motor vehicle. Inspector Bird testified that she counted 37 seated people and two females at the door to the patio for a total of 39. Inspector Bird testified that the patio is licenced for 10 people and that she noted her count when she got back to her motor vehicle.

25After the count, Inspector Bird testified that she met with Oscar David Gutierrez Ramirez, the owner, and informed him that there had been a complaint of over-capacity and that she had counted 37 persons which is more than the 10 persons allowed on the patio by the licence. Mr. Ramirez showed Inspector Bird a news release from the AGCO on his phone about a temporary extension of patios and an information bulletin and said he had been in touch with another AGCO representative, John Rosati. Inspector Bird said she would speak to Mr. Rosati and get back to Mr. Ramirez. Inspector Bird contacted Mr. Ramirez again after speaking with her colleague Mr. Rosati. Inspector Bird also contacted the municipality which confirmed that the municipality had not approved an extension of the appellant’s patio and later obtained written confirmation to this effect from the municipality. Mr. Ramirez told Inspector Bird he would contest the alleged over-capacity observed August 8, 2020 by Inspector Bird. The notes made by Inspector Bird on August 8, 2020 and a few days later corroborate her testimony.

26Devin Sookdeo, Manager, Liquor Eligibility, testified that the appellant’s patio is licenced for 10 persons. Mr. Sookdeo acknowledged that there were temporary extensions for patios for licenced establishments in 2020 if they met certain requirements but that the appellant did not obtain the required approval for this from the municipality in which the premises are located. Mr. Sookdeo also testified that even if the appellant had obtained approval from the municipality to expand its patio, this would not affect the limit of 10 on the appellant’s licence unless the appellant applied to the respondent for and received an increase of the limit of 10 on its licence. Mr. Sookdeo said there was an application in his file from the appellant for a change of licensed area but the file was closed because the appellant did not provide the required documentation and the file was closed prior to August 8, 2020.

27Mr. Sookdeo was not cross-examined. Having considered it, I accept his evidence.

28Mr. Ramirez testified that he has owned the premises since 2011 and manages it. Although much of his testimony was about the requirements for licensed premises to operate their patios in 2020 and the efforts he made to seek permission to expand his patio, the appellant brought forward no documentary evidence or witnesses other himself to counter the evidence of the respondent that the appellant never received any permission to expand its patio from either the municipality nor did he produce evidence of an increase in the capacity condition of the liquor licence from the respondent.

29The appellant brought forward no evidence about how many people were on the patio at the time of the inspection. Candidly, Mr. Ramirez admitted that he did not know how many people were on the patio on August 8, 2020 when Inspector Bird counted 39 people. Despite his obligation to monitor, he was not keeping track of how many people were on the patio.

30Given that the only evidence before me about how many people were on the patio during the inspection is that of Inspector Bird, I find the inspector’s evidence establishes that there were more than 10 people on the patio at the time of the inspection. Inspector Bird gave clear and concise evidence, was not seriously shaken in cross examination and her testimony is supported by her detailed notes of her inspection. I accept Inspector Bird’s testimony that she observed more than 10 people on the appellant’s patio on August 8, 2020 during her inspection which violates the limitation on the appellant’s licence of 10 people on the patio.

31I find unpersuasive the appellant’s submission that Inspector Bird’s count is unreliable because she did not use her mechanical counter. I accept Inspector Bird’s testimony that she could count and remember a number greater than 10 long enough to discuss with Mr. Ramirez and return to her motor vehicle to make her notes. The respondent must establish only that more than 10 persons were on the patio, not the exact number.

32I also find unpersuasive the appellant’s submission in his Notice of Appeal that since the issuance of the respondent’s OMP more than 14 months have passed which has “severely impaired the appellant’s ability to fully respond to the allegations made against him”. Mr. Ramirez was informed of the violation on the day that it occurred and received correspondence from the respondent dated April 27, 2021 to which he responded May 18, 2021. The appellant had ample opportunity to marshal any evidence he had to respond to the over-capacity issue well prior to the OMP and prior to this hearing.

33I also find unpersuasive the appellant’s submission that leniency should be shown to the appellant because of the COVID 19 pandemic and because he had made some efforts to expand the capacity of its patio. Mr. Ramirez is an experienced manager of the licenced premises who knew or should have known that the licence allows only 10 people on the patio, regardless of whether the physical space of the patio was expanded, unless the licence condition was also amended. On the evidence before me, it is clear that the appellant did not obtain an increase in the licenced capacity of its patio from the respondent, nor did he obtain approval from the municipality of any temporary expansion of the patio.

ORDER

34For the reasons above I confirm the OMP of $1,500.00.