LIQUOR LICENCE ACT, R.S.O. 1990
In the Matter of: DUC HUNG VIETNAMESE RESTAURANT 425 Signet Drive North York, Ontario M9L 1V5
Licensee: 1627227 Ontario Limited Licence Number: 90981
Notice of Proposal: To REVOKE a licence Dated July 6, 2006
The Proposal alleges that:
(a) contrary to subsection 55(1) of Ontario Regulation 719/90 under the Liquor Licence Act, the licence holder failed to post the sign provided by the Board informing the public of the suspension of the liquor licence throughout the suspension period.
(b) contrary to subsection 55(2) of Ontario Regulation 719/90 under the Liquor Licence Act (the "O. Reg. 719/90"), the sign indicating the suspension of the liquor licence was not posted in a conspicuous place that was visible from the exterior of the premises to which the suspension applies.
Hearing: Alcohol & Gaming Commission of Ontario 90 Sheppard Ave. E., 3rd Floor Toronto, Ontario M2N 0A4 March 29, 2007
Presiding
Board Members: Patricia McQuaid, Vice-Chair Allan Higdon, Board Member
Appearances: Bryna Kaplan, Representative of the Registrar Donna Pledge, Representative of the Licensee
Attendance: Hong Duong, translator Lisa Duong, for the licensee Quang Duong, principal of the corporate licensee Amanda Higuera, AGCO Liquor Inspector
Authorities: McSorley's Saloon & Grill [2005] OAGCD No. 208
Exhibits: #1 – Placard of suspension
Decision on Sanction
A hearing of the Alcohol & Gaming Commission of Ontario ("AGCO") was convened on March 29, 2007 pursuant to a Notice of Proposal dated July 6, 2006 to revoke a licence issued to 1627227 Ontario Limited for premises operating as Duc Hung Vietnamese Restaurant, 425 Signet Drive, North York, Ontario, M9L 1V5, licence number 90981.
In its decision dated April 19, 2007, the Board found that the licensee violated subsection 55(1) of O. Reg.719/90 and dismissed the allegation of a violation of subsection 55 (2) of O. Reg. 719/90. The parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions.
In her submissions, Ms. Kaplan suggests that this licensee has repeatedly exhibited a failure to comply with the LLA and its regulations. The suspension placard, which was found to have been altered by the licensee, was publicizing a suspension period of sixty days. Further, the licensee has recently been ordered to serve a further 30 day suspension for a breach of a condition on the licence. The suspension placard is posted to inform the public of the reasons for the suspension. By altering it, the licensee has deprived the public of that awareness. Ms. Kaplan submits that a 30 day suspension would be appropriate in the circumstances.
Ms. Pledge, in her submissions, submits that a suspension period of between 1 to 15 days would be appropriate. This is a family business and an important source of livelihood for them, a livelihood which will already be affected by the 30 day suspension which has already been ordered by this Board. Further, Ms. Pledge advised that the licensee has conditionally sold the business, which sale might be adversely affected by another lengthy suspension.
While the Board acknowledges the licensee's concern about the impact of a suspension period on a potential sale, the Board is more concerned about the licensee's continued failure to acknowledge responsibility for what occurs at the establishment.
The Board issues a suspension as a specific and general deterrence against further violations by the particular licensee and by other licensees. Part of that deterrence factor is the required posting of a placard that informs the public of the length of the suspension and the particulars of the offence(s). An altered placard was posted; "permit narcotics" was changed in such a way so that the public would not be informed of the full reasons for the sixty day suspension. As the Board noted, that alteration was purposefully done.
The Board takes seriously the issuance and requirement to post the suspension placard provided by the Registrar in furtherance of a Board order. In this instance, the licensee has not expressed any regret at the action taken. The Board notes that this licensee already faces a significant suspension period of 30 days, a further 30 day suspension may be overly harsh and not necessary in the Board's view, for the purpose of specific and general deterrence. However, the Board, in this instance, is not prepared to minimize the seriousness of the licensee's actions. The Board finds that a 14 day suspension is appropriate. The placard for this suspension is to read: "Fail to post suspension placard as provided by the Board – Permit Narcotics altered."
THEREFORE the Board hereby ORDERS that the licence issued to 1627227 Ontario Limited for premises operating as Duc Hung Vietnamese Restaurant, 425 Signet Drive, North York, Ontario, M9L 1V5, licence number 90981 be SUSPENDED for a period of fourteen (14) days.
The Board further ORDERS that the placard read: "Fail to Post Suspension Placard as provided by the Board –'Permit Narcotics' altered."
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 lease 20 days after the date of this decision and 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 15th DAY OF MAY 2007.
PATRICIA MCQUAID, VICE-CHAIR ALLAN HIGDON, BOARD MEMBER
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