Registrar, Alcohol and Gaming Commission Ontario v. 1428493 Ontario Inc. O/A Leo D’ouro Restaurante, 2007 CanLII 26985

ALCOHOL AND GAMING COMMISSION OF ONTARIO

IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended

BETWEEN:

Registrar, Alcohol and Gaming Commission Ontario Registrar

-and-

1428493 Ontario Inc. O/A Leo D’ouro Restaurante Licensee

DECISION ON SANCTION

Panel: Beryl Ford, Board Member Decision Date: June 12, 2007 Hearing Location: Toronto, Ontario

Alcohol and Gaming Commission of Ontario 90 Sheppard Avenue East, Suite 300 Toronto ON M2N 0A4 Phone (416) 326-0366 Fax (416) 326-5566 Website: www.agco.on.ca

Appearances

Registrar, Alcohol and Gaming Commission ) Joyce Taylor, Representative Leao D’Ouro Restaurante, Licensee ) David Winer, Representative

Decision on Sanction

1A hearing into a Notice of Proposal dated August 14, 2006 to suspend the liquor license number 803523 (the "Licence") issued to 1428493 Ontario Inc. operating as LEAO D’OURO RESTAURANTE on the basis of alleged violations of subsections 30.1(1) of the Liquor Licence Act (LLA) and subsections 31(1)(c), 33(1), sections 13, 52, and 53 of Ontario Regulation 719/90 (O.Reg) made pursuant to the LLA, was held on February 16, 2007 in the City of Toronto.

2In its decision dated March 28, 2007 the Board found the Licensee violated subsection 30.1(1) of the LLA and sections 13, 33(1), 52, and 53(a) and (b) of the O.Reg. and dismissed the alleged violation of subsection 31(1)(c), 53(c) and (d) of the O.Reg.

3Parties were directed to provide written submissions on an appropriate sanction. The Board has carefully reviewed the submissions and previous decisions presented by both parties. The Board appreciated the previous decisions provided by both parties and did compare and consider the findings in each decision.

Decision On Sanction

4The Board issues a WARNING with respect to the breaches of ss.30(1) of the LLA and s. 52 and ss. 53(a) and (b) of the O.Reg. The Board imposes a FOUR day SUSPENSION of the licence with respect to the breaches of s. 13 and ss.33(1) of the O.Reg. Reasons follow.

[Subsection 30(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html#sec30subsec1_smooth) [LLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l19/latest/rso-1990-c-l19.html), Section 52 and Subsections 53(a) and (b) of the O.Reg

5The Board determined that reasons given for failure to post the liquor licence as required by law was not a deliberate action and accepted the evidence that the liquor licence had been inadvertently placed on a shelf where it was not visible at the time of the inspection.

6It was noted in the Board decision that the necessity to post the F.A.S.D. notice is a requirement under the LLA. and the responsibility of the Licensee to comply. Once made aware of this requirement the Licensee complied immediately.

7The Board reviewed the evidence pertaining to the findings for ss. 53(a) and (b) of the O.Reg. The Board notes that the Licensee did comply with the regulation as soon as possible after being informed by the Inspector that it was in fact a violation not to provide the necessary menus and quantity of alcohol being served in drinks available at all times.

8The Board considers these violations were the result of the Licensee and, ultimately, the manager of the premises being either unobservant or unaware of the standard regulatory requirements. It is incumbent on the Licensee to be informed about changes to the Liquor Licence Act and Regulations and ensure that changes to the LLA and its regulations be complied with at all times.

9After considering all the evidence, the nature of these breaches, and, in particular, the Licensee’s prompt steps to correct them the Board concludes a WARNING is the appropriate sanction in the circumstances.

Section 13 and Subsection 33(1) O. Reg.

10The Board is not prepared to consider the Inspection Report for September 12, 2005 submitted by Registrar’s Counsel with her written submissions. Although the Inspector gave oral evidence about this inspection at the hearing, the report was not produced at that time, entered as an exhibit or made available to Counsel for the Licensee in accordance with Rules of Practice.

11From the evidence properly before the Board it was abundantly clear there was no partition separating the sidewalk from the premises on the Inspector’s June 2, 2006 visit. The Inspector gave the Manager a warning and advice about this matter at that time. The Board found that the Licensee was still not in compliance with s. 13 on the June 22, 2006 visit and did not accept the Licensee’s explanation as credible. The Board notes that, following the June 22 inspection, the Licensee closed the full-length windows leading onto the sidewalk and a dividing rope was eventually installed.

12The Board has considered Mr. Winer’s submissions with respect to an alleged ambiguity in its findings on ss. 33(1). At page 9 of its decision the Board states:

The Board accepts the evidence that off licence liquor was purchased and brought onto the licensed premises of the liquor and food preparation area and storage areas of the premises. (emphasis added)

Further, it was admitted by both the Manager and the Licensee that alcohol was purchased for clients and delivered with food catering orders. The alcohol was purchased as a favour to the clients and provided at cost only with no mark up. It was delivered to the clients when the catered food was delivered. Mr. Winer did not raise this point in evidence with the witnesses and it was never stated or suggested that the alcohol was purchased while on route to deliver perishable product to a client. The Board is satisfied there is no ambiguity in its conclusions or reasoning.

13In determining the penalty, the Board considered the fact that the Licensee was open and forthcoming in her explanation for the off licence receipts and her catering business. The Manager co-operated with the Inspector and, although it took two visits to enforce compliance with the partition, this situation was ultimately rectified.

14The Board is of the opinion that the Licensee has learned a lesson from this experience and has already taken action to ensure that the violations will not be repeated.

Order

15The Board ORDERS that liquor licence number liquor license number 803523 issued to 1428493 Ontario Inc. operating as LEAO D’OURO RESTAURANTE, 356 College Street, Toronto, Ontario, be SUSPENDED for a period of FOUR (4) consecutive days.

16The Licensee shall submit proposed suspension dates in writing to the Manager of Hearings, Hearings Department, Alcohol and Gaming Commission of Ontario at the address on the front of this decision within seven (7) days of the date of this decision. The Board will set suspension dates without further notice to the Licensee if proposed dates are not provided within that time. The suspension must be served on days the establishment normally operates. The suspension may not start earlier than twenty (20) days from the date of this decision and must be completed within ninety (90) days of the date of this decision.