ALCOHOL AND GAMING COMMISSION OF ONTARIO
IN THE MATTER OF The: Liquor Licence Act, R.S.O. 1990, c. L.19, as amended
B E T W E E N:
Registrar, Alcohol and Gaming Commission Ontario Registrar
-and-
1590370 Ontario Ltd. O/A AC Bar & Grill Restaurant & Tavern Licensee
DECISION ON SANCTION
Panel: Patricia McQuaid, Vice-Chair Eleanor Meslin, Board Member
Decision Date: July 30, 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 ) Phillip Morris, Representative 1590370 Ontario Ltd., Licensee ) Jerry Herszkopf, Representative
Allegations
1A hearing into a Notice of Proposal dated March 12, 2007 to suspend liquor license number 21870 issued to 1590370 Ontario Ltd. and operating as AC BAR & GRILL RESTAURANT & TAVERN, 1151 Dundas Street West, Mississauga, Ontario, L5C 1C6, (the "premises") on the basis of alleged violation of subsection 45(1) of Ontario Regulation 719/90 ("O.Reg") made pursuant to the Liquor Licence Act ("LLA"), was held on June 12, 2007 in the City of Toronto.
2In its decision dated June 28, 2007, the Board found the Licensee violated subsection 45(1) of the O. Reg. Parties were directed to provide written submission on the appropriate sanction. The Board has received and reviewed those submissions.
Decision on Sanction
3In the Notice of Proposal a 28 day suspension was sought by the Registrar. Given that the Board made the finding as alleged by the Registrar, Mr. Morris submits that a 28 suspension would be appropriate. He cites the previous disciplinary record of the Licensee, in particular, the 10 day suspension served in August, 2006, a result of findings made pursuant to section 29 of the LLA and subsection 45(1) of the O.Reg.
4Mr. Herszkopf, in his submissions, stated that the Licensee has learned her lesson and will, in the future, be more vigilant. Unlike the prior dates on which drunken patrons were found in the premises, in this instance, the patron was sleeping and thus, one infers, not acting out in a drunken or disorderly way. He submits that, in the circumstances, a seven day suspension would be appropriate.
5The Licensee has had this licence, according to Ms. Fu, for approximately 3½ years. There have now been four occasions between November, 2005 and January 2007, on which drunken patrons were found in the premises. In addition, a warning letter was sent to the Licensee on December 2003, shortly after the business opened, regarding a drunken patron. The continuing history, for the same violation, does not suggest that this Licensee has learned a lesson. That lesson ought to have been learned with the ten day suspension served in August, 2006 with respect to drunken patrons found in the premises on November 9, 12, 2005 and January 6, 2007. Less than six months later, the evidence, as found by the Board, is that the patron was served a minimum of four drinks. He fell asleep at some point thereafter without any assessment of his condition. It was only a request from the inspectors that prompted Ms. Fu to approach the individual.
6It is incumbent upon a Licensee to be mindful of the Act and its regulations and to carefully monitor the consumption by and behaviour of patrons. This Licensee has failed in that regard on numerous occasions. Discipline, especially with respect to continued violations of the same regulation is generally progressive. The fact that the patron in this instance fell asleep and was not causing disruption does not negate the failure of the Licensee to meet her obligations under the LLA.
7While a twenty-eight day suspension is harsh in the circumstances, a seven day suspension would not serve the need for both specific and general deterrence in this situation where there is a pattern of permitting drunkenness.
Order
8Therefore, having considered the submissions, the Board herby ORDERS that licence number 21870 issued to 1590370 Ontario Ltd. and operating as AC BAR & GRILL RESTAURANT & TAVERN, 1151 Dundas Street West, Mississauga, Ontario, L5C 1C6, be SUSPENDED for a period of eighteen (18) consecutive days.
9Licensee 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.
DATED AT TORONTO THIS 30th DAY OF JULY, 2007.
PATRICIA MCQUAID, VICE-CHAIR ELEANOR MESLIN, BOARD MEMBER
PM/sm