Licence Appeal Tribunal File Number: 16267/AGCO

In the matter of an appeal from an Order of Monetary Penalty under the Alcohol and Gaming Commission of Ontario Act, 2019, S.O. 2019, C. 15, SCHED.1

Between:

Devoney Brooks o/a Devon House Bar and Nightclub

Appellant

and

Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019

Respondent

Amended DECISION

VICE-CHAIR:

Colin Osterberg

APPEARANCES:

For the Appellant:

D. Brooks, Self-Represented

For the Respondent:

A. Harari, Counsel

Isaac Pekeles, Student-at-Law

HEARD: January 27, 2025

OVERVIEW

1Devoney Brooks (the “appellant”) owns the licensed establishment Devon House Bar and Nightclub (“Devon House”) in Leamington, Ontario. On September 9, 2024, the Registrar under the Alcohol and Gaming Commission of Ontario Act, 2019 (“Registrar”) issued an Order of Monetary Penalty (“Order”), imposing a penalty of $2,750 pursuant to s. 14(6) of the Alcohol and Gaming Commission of Ontario Act, 2019, S.O. 2019, C. 15, Sched.1 (“AGCO Act”). The Order alleges that the appellant breached s. 31(1) and s. 37 of O. Reg. 746/21 (the “Regulation”) under the Liquor Licence and Control Act, 2019, S.O. 2019, c. 15, Sched. 22. (the “LLC Act”), by failing to ensure that liquor was only sold during prescribed hours and that evidence of liquor be removed within 45 minutes after the liquor could be sold and served.

2The appellant appealed from the Order on September 16, 2024 pursuant to s. 14(7) of the AGCO Act. She asserts that the regulations were not contravened and that the penalty is too harsh.

ISSUES

3The issues in dispute are:

i. Did the appellant breach s. 37 of the Regulation on June 1, 2024, by failing to ensure that evidence of liquor had been served and consumed on the licensed premises was removed within 45 minutes after the end of the period during which liquor may be sold and served under the licence;

ii. Did the appellant breach s. 37 of the Regulation on June 23, 2024, by failing to ensure that evidence of liquor had been served and consumed on the licensed premises was removed within 45 minutes after the end of the period during which liquor may be sold and served under the licence; and

iii. Did the appellant breach s. 31(1) of the Regulation on June 23, 2024, by failing to ensure that liquor was only sold and served during the hours prescribed.

4The onus is on the Registrar to establish, on a balance of probabilities, that the appellant contravened the Regulation. The Tribunal does not have authority to vary the amount of an Order of Monetary Penalty.

RESULT

5The appellant breached s. 37 of the Regulation on June 1, 2024, by failing to ensure that evidence of liquor had been served and consumed on the licensed premises was removed within 45 minutes after the end of the period during which liquor may be sold and served under the licence.

6The appellant breached s. 37 of the Regulation on June 23, 2024, by failing to ensure that evidence of liquor had been served and consumed on the licensed premises was removed within 45 minutes after the end of the period during which liquor may be sold and served under the licence.

7The appellant breach s. 31(1) of the Regulation on June 23, 2024, by failing to ensure that liquor was only sold and served during the hours prescribed.

8The Order is confirmed.

ANALYSIS

9Section 14(2) and s. 14(5) of the AGCO Act establish a schedule of monetary penalties that may be imposed for contraventions of, among other things, the LLC Act. The Registrar may impose a Monetary Penalty (“MP”) pursuant to s. 14(5) and the subject of that MP may appeal it to the Tribunal under s. 14(7). Section 14(10) provides that the Tribunal may either confirm the MP or set it aside.

10There is no provision which provides the Tribunal with the authority to vary the amount of the MP. Therefore, if I find that the Registrar has established a contravention of the LLC Act or the Regulation, the MP ordered in respect of that contravention must be confirmed.

Did the appellant contravene s. 37 of the Regulation on June 1, 2024?

11I find that the appellant contravened s. 37 of the Regulation on June 1, 2024, by failing to ensure that evidence of liquor had been served and consumed on the licensed premises was removed within 45 minutes after the end of the period during which liquor may be sold and served under the licence.

12Pursuant to s. 31(1)1 of the Regulation, liquor was to be sold and served no later than 2:00 a.m. Section 37 of the Regulation states that the licensee shall ensure that evidence of liquor that has been served and consumed on the licensed premises is removed within 45 minutes after the end of the period during which liquor may be sold and served. The latest that evidence may be removed is, therefore, 2:45 a.m.

13The Registrar presented the evidence of two inspectors who attended the Devon House on the night in question, Taylor Small and Kris Clements. Both Mr. Small and Ms. Clements stated that they entered the Devon House at approximately 2:55 a.m. on June 1, 2024 and remained there until 3:11 a.m.

14According to Mr. Small, he saw various evidence of the service of alcohol on this inspection. Mr. Small observed numerous cups on tables and in the hands of patrons which held various liquids. Some of the liquids were clear, some looked like wine, some looked like whiskey. At one point he smelled a cup that had an amber liquid in it and it smelled like rye whiskey. As Mr. Small was leaving, he passed by another table with cups that contained an amber liquid. He smelled that liquid and it smelled like rye whiskey as well.

15Ms. Clements also testified to seeing cups with various drinks on tables throughout the premises, some of which had an amber liquid. She noted that liquid appeared flat with no bubbles and had no ice. Ms. Clements also saw, and took a picture of, a bucket on a table that had an empty bottle of vodka in it. The picture was presented as evidence at the hearing.

16Ms. Clements testified that she spoke with Rudolph Brooks, the husband of the appellant, who was working behind the bar that evening and he did not deny that there was evidence of the sale and service of liquor present as described above nor did he suggest that the liquid in the cups that were there was anything other than alcohol.

17Mr. Rudolph testified at the hearing and said that he was not aware that he should deny that there was evidence of alcohol present. He says that the amber liquid was probably Red Bull or Red Rain which are both energy drinks that do not contain alcohol and which resemble whiskey. According to Mr. Rudolph, his practice is to stop serving alcohol at 2:00 a.m. and to gather all of the cups and pour their contents in a bucket at that time. He says that after that, since he only serves non-alcoholic beverages, the liquid observed by the inspectors could not have been whiskey or any other type of alcohol.

18I do not accept Mr. Rudolph’s evidence. As will be discussed below, alcohol was clearly being served well after 2:00 a.m. on June 23, 2024. Further, if all of the alcohol was poured out and cups holding alcohol removed at 2:00 a.m. then Mr. Small, whose evidence I accept, would not have smelled alcohol on the only two occasions where he smelled drinks almost an hour later.

19I find that the presence of alcohol in some patron’s cups after 2:45 a.m. is evidence of liquor having been served and consumed on the licensed premises in contravention of s. 37 of the Regulation.

20In addition, I find that the empty vodka bottle observed by Ms. Clements is evidence of liquor having been served and consumed on the licensed premises in contravention of s. 37 of the Regulation.

21I find that the Registrar has established that the appellant contravened s. 37 of the Regulation on June 1, 2024, by failing to ensure that evidence of liquor had been served and consumed on the licensed premises was removed within 45 minutes after the end of the period during which liquor may be sold and served under the licence.

Did the appellant contravene s. 37 of the Regulation on June 23, 2024

22I find that the appellant contravened s. 37 of the Regulation on June 1, 2024, by failing to ensure that evidence of liquor had been served and consumed on the licensed premises was removed within 45 minutes after the end of the period during which liquor may be sold and served under the licence.

23The Registrar presented the evidence of two inspectors who attended the Devon House on the night in question, Kris Clements and Troy Moffatt. Both Ms. Clements and Mr. Moffatt stated that they entered the Devon House at approximately 3:15 a.m. on June 23, 2024 and remained there until 3:25 a.m.

24According to Ms. Clements, there were over 100 people in Devon House on that date and they were shoulder-to-shoulder. She saw that many of the patrons were holding cups with various liquids and she saw that some of them were holding Heineken beer bottles. Ms. Clements also saw a bartender hand a patron a Heineken beer bottle which the patron then poured into a red Solo cup. She also saw a box of six Heineken bottles placed on the floor with three of those bottles still full.

25Ms. Clements produced a photograph in evidence which she took at that inspection, which shows the six-pack of Heineken on the floor as well as a patron holding a Heineken beer bottle.

26Mr. Moffatt testified that he observed discarded red and clear cups, some of which smelled of alcohol, on a number of tables. He saw a lot of beer bottles, some of which were full, some of which were in the hands of patrons, and some of which were empty. He also saw an empty Hennessy (Cognac) bottle.

27According to Mr. Brooks, he was present in the building on the night of June 23, 2024, but was in the kitchen during the inspection and did not know the inspectors were present. The appellant was not present on the premises that evening.

28I accept the evidence of Ms. Clements and Mr. Moffatt. Their evidence was consistent and mostly unchallenged by the appellant and Mr. Brooks. The empty beer bottles, the empty Hennessy bottle, the six-pack of Heineken beer on the floor, the empty cups that smelled of alcohol, and the beer bottles in the hands of several patrons as observed by Ms. Clements and Mr. Moffatt are evidence that liquor had been served.

29I find that the Registrar has established that the appellant contravened s. 37 of the Regulation on June 23, 2024, by failing to ensure that evidence that liquor had been served and consumed on the licensed premises was removed within 45 minutes after the end of the period during which liquor may be sold and served under the licence.

Did the appellant breach s. 31(1) of the Regulation on June 23, 2024

30I find that the appellant contravened s. 37 of the Regulation on June 23, 2024, by failing to ensure that liquor was only sold and served during the hours prescribed.

31As stated above, Ms. Clements witnessed beer being served to a patron after 3:00 a.m. and, as observed by both Ms. Clements and Mr. Moffatt, a number of patrons were holding beer bottles at that time.

32The appellant presented no evidence which refuted the evidence of Ms. Clements and Mr. Moffatt. The bartender who was seen serving the beer to the patron was not called as a witness and Mr. Brooks did not suggest an alternate explanation for their observations.

33I find that the appellant contravened s. 37 of the Regulation on June 23, 2024, by failing to ensure that liquor was only sold and served during the hours prescribed.

Conclusion

34The Registrar assessed $1,000 MPs for each of the contraventions of s. 37 of the Regulation and a $750 MP for the contravention of s. 31(1) of the Regulation. I have found that the contraventions alleged by the Registrar have been proven on a balance of probabilities.

ORDER

35The Order is confirmed.