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-
1196927 Ontario Limited O/A Scudder Beach Bar & Grill
Licensee
DECISION
Panel: S. Grace Kerr, Board Member Allan Higdon, Board Member
Decision Date: November 1, 2007
Hearing Location: Windsor, 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 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Brad Alton, Representative 1196927 Ontario Limited, Licensee ) Joseph Barile, Representative
- A hearing into a Notice of Proposal number 14508 dated August 31, 2006 to suspend liquor license number 805375 issued to 1196927 Ontario Limited, operating as Scudder Beach Bar & Grill, 325 North Shore Road, Pelee Island, Ontario, N0R 1M0, on the basis of alleged violations of section 29 of the Liquor Licence Act (LLA) and subsection 45(1) of Ontario Regulation 719/90 (O.Reg) made pursuant to the LLA, was held on August 16, 2007 in the City of Windsor.
Decision
Brad Alton, Registrar’s Representative, and Joseph Barile, Licensee’s Representative submitted an Agreed Statement of Facts (Exhibit 1) and Joint Submission on Disposition (Exhibit 2) which form part of this decision. Based on the Agreed Statement of Facts, the Board found the Licensee breached section 29 of the LLA and subsection 45(1) of the O. Reg.
The Board has reviewed the submissions on dates for which the suspension of the licensee’s licence is to be in effect and has determined that the suspension is to be served commencing June 23, 2008 at 11:00 a.m. and ending on July 14, 2008 at 2:00 a.m. Reasons follow.
Background Matters
The matter was pre-heard on October 27, 2006. The original hearing date was set for February 7, 2007, but licensee’s representative requested an adjournment because he (counsel) was unavailable that day. Ultimately, a new hearing date was set for August 16, 2007.
The Board has reviewed other decisions made by it in relation to this licensee as follows:
a. On June 4, 1997 (the ‘1997 decision’), the Board reviewed the (original) application for licence and granted a licence subject to various conditions;
b. On October 4, 2000 (the ‘2000 decision’), the Board reviewed an application for licence for additional outdoor capacity and refusal of the Registrar to remove conditions, some of which, but not all, were entirely or in part removed;
c. On November 24, 2005 (the ‘2005 decision’), the Board dealt with a Notice of proposal, dated October 14, 2003 to suspend a licence and made findings further to s. 6 of the Liquor Licence Act and ruled that the licensee had contravened s. 29 of that Act as well as section 29, subsections 34(1) and 45(1) of Ontario Regulation 419/90; and,
d. On January 13, 2006 (the ‘2006 decision’) ordered a 21-day suspension to be served consecutively on dates to be chosen by the licensee between July 1 and August 30 of the year 2006 in respect of the findings made in its 2005 decision.
Agreed Matters
- On August 16, 2007, before the hearing was scheduled to commence, the parties reached and signed an Agreement as to the Facts (Exhibit 1) that:
On July 22, 2006, drunken patrons were in the licensed premises and were served liquor despite their intoxicated appearance.
For the above reasons, the Board finds that the licence holder has breached subsection 45(1) of the O. Reg. and s. 29 of the LLA.
The parties submitted a Joint Proposal regarding Disposition (Exhibit 2) at the hearing and the Board orally ordered a 21 day suspension, to be served on dates to be provided in writing to the Manager of Hearings within 7 days of the hearing, failing which dates would be imposed by the Board without further consultation with the licencee.
While each of the parties proposed dates, as required, they were unable to agree as to when the suspension would be served.
Reasons
In two letters to the AGCO offices, dated August 23rd and August 28th (both of 2007), Mr. Barile, on behalf of the Licensee, suggests that the suspension be served commencing October 1, 2007 and ending at 2:00 p.m. on October 22, 2007 and that his client “fully intends” to continue the sale of alcohol as permitted on October 22, 2007 until November 16, 2007. Alternatively, he proposes, “as a compromise position”, that the suspension be served from April 1, 2008 until 2:00 p.m. on April 22, 2007, “should the hearings department be in agreement with the same”.
In his letter to the AGCO dated August 23rd, 2007, Mr. Barile also advises that his client “has and will continue to ‘normally operate’ his establishment in conjunction with Provincial ferry service which services the Pelee Island”. This service, he indicates, runs until November 16, 2007, and recommences “in and around the beginning of April, 2008. He further reminds the Board (correctly) that there are no conditions to his client’s licence requiring it to cease to operate on or before a particular date.
In contrast, counsel for the Registrar prefers that the suspension be imposed by the Board “at the commencement of next season”, which he believes to be the “end of May 2008”, in contrast to Mr. Barile’s stated views. Alternatively, he suggests that the suspension dates be immediate.
There is additional evidence, which the Board can rely upon, as to what constitutes the licensee’s ‘normal operations’, as follows:
a. In the Board’s 2005 decision, (Scudder Beach Bar & Grill [2005] O.A.G.C.D. No. 484, Q.L.), the licensee’s evidence was that the establishment is opened ‘on May 15th, if possible’ and that it ‘stays open full time until past Labour Day and then Thursday-Sunday through September and October’. In fact, testimony on behalf of the licensee in that hearing specified that ‘the July/August time frame either “makes or breaks us”’;
b. In the 2000 decision, (Scudder Beach Bar & Grill [2000] O.A.G.C.D. No. 304, Q.L.), evidence on behalf of the licensee was also adduced to indicate that ‘the clientele of the restaurant consists mainly of boaters who use the docking facilities nearby’; and,
c. In the 1997 decision, (Scudder Beach Bar & Grill [1997] O.L.L.B.D. No. 208, Q.L.), one of the objectors testified that ‘Pelee Island has an all-year round population of about 250’, which increases ‘to about 3,000 in the summer with the incoming of tourists’.
Based on Mr. Barile’s representations as well as evidence regarding this licensee previously before the Board, the Board finds that the licence holder ‘normally operates’ its business in each year in direct relation to the province’s ferry service to Pelee Island in order to avail itself of the tourist and boating trade, particularly during the busier (and hence more profitable) summer months of July and August in each year.
Parties are encouraged to agree on the dates that the licence holder’s licence is to be suspended and, where reasonable, those requested or agreed upon dates are accommodated by the Board. However, the Board always retains the prerogative to impose dates on a case-by-case basis after reviewing all submissions.
Generally speaking, the AGCO’s policy is that suspension dates should be served on days that the licensee is normally in operation. That said, there is nothing in this general statement requiring that the suspension period fall during a time when business would be slow.
The public is entitled to have confidence that sanctions imposed for breaches of the LLA (and its Regulations) are not only meaningful and effective, but are taken seriously by the licence holder who stands fully responsible before the Board with regard to their licence. The length of suspension dates imposed for breaches of the LLA is one part of meeting these legislative goals and requirements.
The timing of the dates of suspension is a further consideration, necessary to impress these goals and responsibilities upon the licensee. In this case, the Board finds that this latter aspect would best be achieved by having the licence holder serve a suspension in its 2008 season, during a time when its business is likely to be busier, the import of the sanction thus to be more keenly felt, and the goals of imposing the sanction more likely to be achieved. To these ends, the Board has also taken into consideration the licence holder’s history of past infractions.
Order
- Therefore, having considered the Joint Submission on Disposition and the further submissions from the parties, the Board ORDERS that the liquor licence issued to 1196927 Ontario Limited, operating as Scudder Beach Bar & Grill, 325 North Shore Road, Pelee Island, Ontario, N0R 1M0, licence number 805375, be SUSPENDED for TWENTY-ONE (21) consecutive days to COMMENCE at 11:00 a.m. on June 23, 2008, and CONTINUE until 2:00 a.m. on July 14, 2008.
DATED AT TORONTO THIS 1st DAY OF November, 2007.
S. GRACE KERR, BOARD MEMBER ALLAN HIGDON, BOARD MEMBER
GK/ee
Attached.
IN THE MATTER OF THE LIQUOR LICENCE ACT
R.S.O. 1990, chapter L.19, subsections 15(1) and 21(1)
AND IN THE MATTER OF THE LIQUOR LICENCE OF 1196927 ONTARIO LIMITED, OPERATING AS SCUDDER BEACH BAR & GRILL, 325 NORTH SHORE ROAD, PELEE ISLAND LICENCE NUMBER 805375
NOTICE OF PROPOSAL NUMBER 14508
Agreed Statement Of Facts
The Licence Holder, having consulted legal counsel and Registrar’s Counsel agree to the following with respect to the Notice of Proposal to Suspend a Licence dated August 31, 2006:
On July 22, 2006, drunken patrons were in the licensed premises and were served liquor despite their intoxicated appearance.
Based on the facts in paragraph 1, the Licence Holder admits to violations of subsection 45(1) of Ontario Regulation 719/90 under the Liquor Licence Act and of section 29 of the Liquor Licence Act.
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IN THE MATTER OF THE LIQUOR LICENCE ACT
R.S.O. 1990, chapter L.19, subsections 15(1) and 21(1)
AND IN THE MATTER OF THE LIQUOR LICENCE OF 1196927 ONTARIO LIMITED, OPERATING AS SCUDDER BEACH BAR & GRILL, 325 NORTH SHORE ROAD, PELEE ISLAND LICENCE NUMBER 805375
NOTICE OF PROPOSAL NUMBER 14508
Joint Submission Regarding Disposition
The Licence Holder, having consulted legal counsel and Registrar’s Counsel submit that the following disposition, with respect to the Notice of Proposal to Suspend a Licence dated August 31, 2006, is appropriate in these circumstances:
There shall be a TWENTY-ONE (21) day suspension of liquor licence #805375 to be served consecutively within NINETY (90) days of today’s date, on dates to be provided in writing to the Manager of Hearings within SEVEN (7) days of today’s date, failing which dates shall be imposed by the Board without further consultation with the Licensee. The Licensee is aware that the proposed suspension cannot start within 20 days of today’s date.
Should the Board members make the findings as agreed to, and impose the disposition as submitted, then Registrar’s Counsel with withdraw the remaining allegations, if any, in the Notice of Proposal of August 31, 2006.
Dated at Windsor this 16th day of August, 2007.
Joe Barile Brad Alton, Counsel for the Counsel for the Licence Holder Registrar of the AGCO
Richard George Hamm Licence Holder “I have authority to bind the corporate licensee”
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