LIQUOR LICENCE ACT, R.S.O. 1990
In the Matter of: DEAN MARTINI’S 53- 63 Pitt Street East Windsor, Ontario N9A 2V3
Licensee: 1206623 Ontario Ltd.
Licence Number: 800603
Notice of Proposal: To SUSPEND a licence Dated December 28, 2006
The Proposal alleges that contrary to section 43 of Ontario Regulation 719/90 (the “O. Reg.”) under the Liquor Licence Act (the “LLA”), the licence holder failed to ensure that the number of persons on the premises to which the licence applies, including employees of the licence holder, does not exceed the capacity of the licensed premises as stated on the licence.
Hearing: Alcohol & Gaming Commission of Ontario Holiday Inn Select 1855 Huron Church Street Windsor, Ontario March 22, 2007
Presiding
Board Members: David C. Gavsie, Chair Bruce Monteith, Member
Appearances: Brad Alton, Representative of the Registrar Michael Soleski, on behalf of the corporate licensee
Exhibits: #1 – Letter dated June 22, 1999, from the City of Windsor Building Department #2 – Floor plan of Dean Martini’s dated June 25, 1999 #3 – Letter dated June 22, 1999, from City of Windsor, Fire and Rescue Services #4 – AGCO Liquor Inspection report dated June 28, 1999 #5 – Letter dated November 2, 2001, from Dean Martini’s #6 – Letter dated January 19, 2007, from City of Windsor Building and Development Department #7 – Letter dated January 22, 2007, from Dean Martini’s
SANCTION
In its decision dated April 5, 2007, the Board found that there had been a violation by the Licensee of section 43 of the O. Reg. on October 22, 2006. The Board asked for submissions on sanction which the Board has now received and read.
In the NOP, the Registrar sought a 7 day suspension.
Mr. Alton, in his submissions on behalf of the Registrar, pointed out that the Licensee was warned about overcrowding on the patio before the night of the violation, and admitted in giving his evidence that he has knowingly exceeded capacity on the patio, having believed it to be 28, not 20. The Licensee thought an error had been made when the 20 person capacity was put on his licence.
Mr. Soleski, in his submission, pointed out the Licensee’s flawless operating record.
Any sanction imposed by the Board, first, has to fit the specific violation or violations found by the Board to have occurred regarding a specific Notice of Proposal. However, there is a second aspect to a sanction, and that is deterrence to others to show that the Board does take a violation of the LLA seriously and that there are consequences for doing so by licensees in general.
Overcrowding or being over capacity is a serious LLA violation. There have been a number of serious incidents in North America and elsewhere, where overcrowding in the case of an unforeseen event such as a fire, had led to significant loss of life and injury. Hopefully, such a situation will not occur in Ontario.
Given the above, the Board is of the view that a FIVE (5) day suspension of licence number 800603 is the appropriate sanction in this case.
The Board’s policy will be followed as far as the dates for serving the sanction are established.
The suspension of liquor licence 800603 shall be served on dates to be provided in writing to the Manager of the Hearings Section of the Alcohol & Gaming Commission of Ontario, 90 Sheppard Avenue East, Suite 200, Toronto, Ontario, M2N 0A4, fax: 416-326-5566 within seven (7) days of today’s date, failing which the Board shall impose the dates of the suspension without further consultation with the licensee. The suspension cannot commence for at least twenty (20) days following notification, must be completed within ninety (90) days of today’s date, and shall include the day of the week that the violation occurred.
DATED AT TORONTO THIS 15th DAY OF MAY, 2007.
DAVID C. GAVSIE, CHAIR BRUCE MONTEITH, BOARD MEMBER
DCG/rb