Alcohol & Gaming Commission of Ontario
LIQUOR LICENCE ACT, R.S.O. 1990
In the Matter of: POONAM RESTAURANT 2658 Danforth Ave. Toronto, Ontario M4C 1L7
Licensee: Balkanian Restaurant & Tavern Ltd.
Licence Number: 802681
Notice of Proposal: To SUSPEND a licence September 28, 2006.
The Proposal alleges that:
(a) contrary to subsection 30.1(1) under the Liquor Licence Act ("LLA"), the licence holder failed to display the Fetal Alcohol Spectrum Disorder warning sign while selling or supplying liquor or offering to sell or supply liquor.
(b) contrary to subsection 31(1)(c) of Ontario Regulation 719/90 under the Liquor Licence Act, the licence holder kept for sale liquor not purchased under the licence.
(c) contrary to section 33(1) of Ontario Regulation 719/90 under the Liquor Licence Act the licence holder permitted liquor other than liquor purchased by the licence holder under the licence from a government store to be brought onto the licensed premises or the liquor and food preparation area and storage areas.
(d) contrary to subsection 53 of Ontario Regulation 719/90 under the Liquor Licence Act (the "O. Reg. 719/90") the licence holder failed to make available lists describing:
(i) the varieties of liquor available for sale;
(ii) the amount of liquor in each type of drink offered for sale;
(iii) the varieties of non-alcoholic beverages available for sale;
(iv) the purchase price of the liquor and non-alcoholic beverages.
Hearing: Alcohol & Gaming Commission of Ontario 90 Sheppard Ave. E., 3rd Floor Toronto, Ontario M2N 0A4
January 19, 2007
Presiding
Board Members: Patricia McQuaid, Vice-Chair Alan Higdon, Member
Counsel for the Registrar: Bryna Kaplan
Attendance: Kuldeep Singh, for the corporate licensee Sucha Singh Mokha, for the licensee Ryan Baird, AGCO liquor inspector
Decision on Sanction
A hearing of the Alcohol & Gaming Commission of Ontario was held on January 19, 2007 pursuant to a Notice of Proposal dated September 28, 2006 to suspend a licence issued to Balkanian Restaurant & Tavern Ltd. for premises operating as Poonam Restaurant, 2658 Danforth Ave., Toronto, Ontario, M4C 1L7, licence no. 802681.
In its decision dated February 1, 2007, the Board made findings of a violation of section 31 (1) (c) and 33 of O. Reg. 719/90.
The Board has received and carefully considered the written submissions from the parties regarding the disposition of this matter. Registrar's counsel submits that the licensee does business in a highly regulated industry and is ultimately accountable for breaches of the Liquor Licence Act whether or not the licensee is in fact on site at the material time. Where a very small portion of sales arise from liquor sales, counsel submits that a suspension period of 7 – 10 days is required in order for an impact to be felt by this licensee in respect of the violations of section 31 (1) (c) and 33 of O. Reg. 719/90.
In contrast, Mr. Singh, the principal of the licensee, submits that in respect of the case of Labatt Blue, on which a finding was made under section 33 (1) of O. Reg. 719/90, it was his evidence alone that brought this to the Board's attention. A one day suspension would, in the circumstances, be appropriate.
The Notice of Proposal, wherein a 14 day suspension was requested, cited violations under four different sections of the Act and its regulation 719/90. Two findings were made in respect of liquor kept for sale and/or permitted on the premises, not purchased under licence. The Board notes the candour of Mr. Singh in his evidence generally and in advising the Board that his employee had brought a case of Labatt Blue on the premises, albeit with the stated intention to store it there temporarily. Regardless of whether the licence-holder is on site, he or she is ultimately responsible to ensure compliance with the Act and its regulations, in this instance that only liquor purchased under licence is kept on the premises. Compliance cannot be avoided by absence from the premises.
However, in light of the circumstances under which findings were made in this matter, the Board feels that a 7-10 day penalty is too harsh. The reason behind the presence of the case of Labatt Blue does not excuse it, but does provide a context. In this situation, the Board does not accept that an establishment with a small percentage of liquor sales should receive a longer period of sanction for similar violations found against an establishment with more significant percentage of liquor sales, to ensure a deterrent effect.
Therefore, as a matter of specific and general deterrence, the Board ORDERS a suspension of FIVE (5) consecutive days of the liquor licence issued to Balkanian Restaurant & Tavern Ltd. for premises operating as Poonam Restaurant, 2658 Danforth Ave., Toronto, Ontario, M4C 1L7, licence no. 802681.
The proposed suspension dates are to be submitted in writing to the Manager of Hearings section of the Alcohol & Gaming Commission of Ontario, 90 Sheppard Avenue East, Suite 200, Toronto, Ontario, M2N 0A4, facsimile 416-326-5566 within seven (7) days of today's date, failing which the Board shall set the dates for suspension without further notice to the licence holder. The suspension shall not commence for at least 20 days after the date of this decision, shall be completed within 90 days of the date of this decision, and shall be completed on days that the establishment is normally operating.
DATED AT TORONTO THIS 5TH DAY OF MARCH 2007.
PATRICIA MCQUAID, VICE-CHAIR ALLAN HIGDON, BOARD MEMBER
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