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-
1131422 Ontario Limited O/A Clancy’s
Licensee
DECISION ON SANCTION
Panel: Guy Maurice, Board Member Allan Higdon, Board Member
Decision Date: August 29, 2007
Hearing Location: Peterborough, 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 ) Sujin Chan, Representative 1131422 Ontario Limited, Licensee ) Keith Juriansz, Representative
[1]. A hearing into a Notice of Proposal (“NOP”) dated August 31, 2006 and a Supplementary NOP dated January 29, 2007 suspend liquor license number 92000 (the “Licence”) operating as CLANCY’S, 189 Hunter Street West, Peterborough, Ontario, K9H 2L1, on the basis of alleged violations of section 43 and subsections 44(1) and 34(1) of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on February 20, 2007 in the City of Peterborough.
[2]. In its decision dated July 30, 2007 the Board found the Licensee violated section 43 of the O.Reg. Parties were directed to provide written submissions on an appropriate sanction. The Board has received and reviewed those submissions
Registrar’s Submission
[3]. The Registrar notes this is the fourth incident of overcrowding at Clancy’s. The license was suspended twice in 2006 and once in 2004 for the same infraction.
[4]. The Licensee denied the patio was over capacity despite the fact the Inspector counted patrons in the area three times. The Licensee has clearly not exhibited diligence in ensuring compliance with the legal capacity of the licensed premises. Despite previous problems, one entrance to the establishment was left unmonitored and another entrance from the patio to the inside of the premises was unmonitored. Only one person was responsible for ensuring that the legal capacity for three licensed areas totalling over two hundred people was observed.
[5]. Overcrowding is a serious issue. In this case an area for eighteen persons contained twenty six – an excess of 45% over legal capacity. Given the serious nature of the offence and the repeated illegal behaviour of the Licensee, the Registrar requests a suspension of 28 days to ensure general and specific deterrence of further infractions.
Licensee’s Submission
[6]. The Licensee mounted a vigorous defence and appropriately challenged evidence thought to be questionable. The issue of credibility was explored due to differing accounts of the events on the night in question. There was no attempt to be malicious in challenging the account of the Inspector.
[7]. The Licensee does diligently monitor the premises. On the night of the infraction the Licensee was short one doorman. The Licensee recognizes a replacement should have been found or the subject area closed off. The Licensee acknowledges that overcrowding is a serious issue and takes pains to prevent it.
[8]. With regard to previous infractions, the first took place under different ownership and the second and third took place in February and March of 2005. This fourth infraction took place over a year since the last incident. This is an isolated incident caused by the absence of one staff member, not a pattern of neglect or negligence.
[9]. No injury was caused to any patron and the Licensee has committed to enacting further measures to prevent overcrowding. Given the nature of this incident and some of the precedents in the case law, an appropriate sanction would be a 12 day suspension.
Registrar’s Reply Submission
[10]. Counsel for the Registrar notes that no evidence was presented at the hearing of future measures the Licensee intends to take to prevent overcrowding. It is too late to outline proposals at this date. The cases presented by counsel for the Licensee do not relate to the case at hand.
[11]. The Licensee is noted on documents as being associated with the premises when the first infraction took place. She should be aware of the circumstances of each of the four infractions registered against this premises. It is true there were no injuries due to the overcrowding. Had there been the Registrar would have sought a much more severe sanction.
[12]. A 12 day suspension would not be sufficient to reflect the gravity of this offence. A suspension of 28 days is appropriate.
Decision
[13]. The Board considers overcrowding a very serious infraction. It is imperative for the future of the hospitality industry that the public has absolute confidence that licensed premises are operated in a responsible manner that ensures the safety of their patrons.
[14]. Panic can be caused by many events - the smell of smoke, the sight of fire, the sound of a shot – and pandemonium quickly results. This frequently results in a tragic loss of life in overcrowded premises. Constant vigilance is necessary to ensure such incidents do not happen. Strict enforcement of regulations is necessary to maintain that vigilance.
[15]. This establishment has been found on four occasions to have permitted overcrowding. Clearly, the serious nature of this offence has not registered with the Licensee or corrective measures would have been taken to ensure an appropriate number of trained staff was on hand to prevent this ever happening again.
Order
[16]. The Board therefore ORDERS, as a matter of general and specific deterrence, a twenty-one (21) day suspension of licence number 92000, operating as Clancy’s, 189 Hunter Street West, Peterborough, Ontario, K9H 2L1.
[17]. Licensee shall submit proposed suspension dates in writing to the Manager of Hearings, 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 29^th^ DAY OF AUGUST, 2007
ALLAN HIGDON, BOARD MEMBER GUY MAURICE, BOARD MEMBER
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