Registrar, Alcohol and Gaming Commission Ontario v. 1610396 Ontario Inc., 2008 CanLII 16827

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-

1610396 Ontario Inc. O/A Carey’s Bar and Grill Licensee

DECISION

Panel: S. Grace Kerr, Board Member Decision Date: February 26, 2008 Hearing Location: London, 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 1610396 Ontario Inc., Licensee ) Mohammed Habash, a shareholder/office/director

Allegations

1. A hearing into a Notice of Proposal number 15694, dated October 10, 2007, to suspend liquor licence number 203629 (the “Licence”) issued to 1610396 Ontario Inc. (the “Licensee”) operating as CAREY’S BAR AND GRILL, 1569 Oxford Street East, Unit 1, London, Ontario, N5V 1W5, on the basis of an alleged violation of section 29 of Ontario Regulation 719/90 (the “O.Reg”) made pursuant to the Liquor Licence Act (“LLA”) was held on January 22, 2008 in London, Ontario.

Decision

2. On the basis of the evidence and the admission of the licence holder, detailed below, the Board FINDS that the Licensee violated section 29 of the O.Reg on February 22, 2007. At the Licensee’s request and with the consent on the Registrar’s representative, the Registrar and the Licensee also tendered evidence and made submissions at the hearing as to an appropriate sanction. Having carefully reviewed and considered this evidence and those submissions, the Board ORDERS that the liquor licence shall be suspended for two (2) consecutive days. The Board’s reasons follow.

Preliminary Matters

3. Mohammed Habash is a shareholder/officer/director of the Licensee. He appeared on behalf of the Corporation and waived its right to be represented by a licensed representative.

Registrar’s Evidence

4. The Registrar’s first witness was Constable Roy Philip Allen, a 9-year police officer with the London Police Services (“LPS”). Constable Allen first attended at Carey’s Bar & Grill (the “establishment”) at approximately 2:45 a.m. on February 22, 2007 as part of a routine check on local licensed establishments, intended as a type of pro-active action against drinking and driving. He was in uniform and driving a marked police cruiser. Pulling up parallel to and looking through the front windows of the establishment, he observed that its lights were on and several persons were sitting around in it; closing time is 2:00 a.m. Cst. Allen left, but returned at 3:00 a.m. that same night. At that time, he observed (again through the front windows) that the establishment’s lights were still on and some people were still sitting at the bar. He went up to the front doors, which were locked, knocked, and Mr. Habash gave him entry. Mr. Habash identified himself as the owner of the establishment and was co-operative with the officer. Four individuals were sitting at the bar: two of them had beverage containers in front of them which, the officer believed, contained beer. The one container had been half-consumed; the other one, a 12-ounce glass of beer, had been consumed about 2 inches down from its rim. Mr. Habash told the officer that all of these individuals were his employees. Mr. Habash cleared the beer from the bar while Cst. Allen was there. There was no other evidence of ‘after hours’ service.

5. Mr. Habash did not cross-examine this witness, telling the Board that “what he (the officer) stated was fair”.

6. Constable Christopher Carne, an 8-year police officer with the LPS, also gave evidence on behalf of the Registrar. For three of those eight years, Cst. Carne was assigned to the LPS’ community-oriented response unit, which works proactively and in partnership with the local city council as well as other agencies, such as the Alcohol and Gaming Commission of Ontario (the AGCO), to educate licence holders about the applicable legislation, liability issues, and so on. He has also worked as the LPS liaison with the AGCO, where he dealt with ‘problem bars’ and also laid charges against establishments on behalf of the AGCO when warranted by the evidence. On March 17, 2007, Cst. Carne met with Mr. Habash in his latter capacity. He advised Mr. Habash that, as a result of his investigation into the allegations made by Cst. Allen regarding the circumstances of February 22, 2007, charges would be laid against the establishment. In that meeting, Mr. Habash was co-operative and told the officer that it was only his staff members having a drink after work.

7. Cst. Carne described Mr. Habash as a motivated licence holder. Cst. Carne said that he had a good working relationship with Mr. Habash and that he had worked with Mr. Habash in the past when the constable was with the community-oriented response unit. At that time, Mr. Habash pled guilty to a violation of the LLA that involved a problem customer, the incident having occurred shortly after Mr. Habash had opened the establishment.

8. Mr. Habash did not cross-examine this witness either, stating that “everything he (Cst. Carne) said was fairly accurate”.

Licensee’s Evidence

9. Mohammed (“Mike”) Habash testified as principal of the licence holder. He said that, on February 22, 2007, his staff had pre-ordered drinks (that is, before the bar’s closing time of 2:00 a.m.), and set them aside. They then proceeded to do the clean-up. All of the patrons were gone by 2:30-2:35 a.m. on the 22nd; the establishment’s front doors were then locked. The staff was sitting with their drinks at the bar, directly facing the windows. He saw Cst. Allen’s car sitting in front of the bar at 2:45 a.m. He did not feel that he was doing anything wrong, otherwise he would have had his staff “dump their drinks”. Cst. Allen explained the law to him, that is, that all drinks must be cleared by 2:45 a.m., whether staff or customers’. As regards this incident, Mr. Habash said that he now knows that it was wrong, although he did not feel at the time that he was breaking the law.

10. Upon cross-examination, Mr. Habash confirmed that what Cst. Allen had stated in his testimony was accurate. He also confirmed that both staff had been drinking beer, the one drink having been half-consumed and the other one having been consumed to about 2 inches from the top.

Registrar’s Submissions

11. There has been an infraction of s. 29 of the O.Reg in that the evidence is clear and compelling that the signs of service and consumption had not been cleared within 45 minutes of closing.

Licensee’s Submissions

12. Mr. Habash candidly admits that his establishment failed to uphold the law.

Reply

13. There were no reply submissions.

Analysis & Reasons

14. The Licensee has admitted that his establishment failed to clear the signs of service and consumption on the date in question, as is required by law. The Board accepts that this admission was freely given. Mr. Habash also acknowledged the accuracy of Cst. Allen’s evidence that, at 3:00 a.m. on February 22, 2007 when he attended at the establishment, two glasses of beer were being consumed by two of the establishment’s staff. Mr. Habash testified that staff ordered and was served their drinks before the closing time of 2:00 a.m. and his practice until the date in question was for the staff to set their drinks aside for consumption after the last patrons had left. In this instance, the Board finds that two beers were consumed by Mr. Habash’s staff more than 45 minute after closing, which is not permitted by the O. Reg.

Conclusion

15. For the reasons given, the Board FINDS the Licensee violated section 29 of the O. Reg.

Submissions as to Sanction

16. At the request of the Licensee and with the consent of the Registrar’s representative, the Board then received evidence and heard submissions by both parties on sanction.

Registrar’s Evidence

17. Mr. Alton advised the Board that the Licensee was sent a Letter of Incident (“LOI”) regarding this matter in September, 2007. As the Licensee did not respond to the LOI, the Notice of Proposal was issued.

18. Constable Carne was re-called as a witness and testified that the licence holder served a 21-day suspension of its licence from March 17, 2006 until April 7, 2006 after pleading guilty to charges that the establishment “served to intoxication”, “permitted drunkenness” on its premises, and “failed to remove” intoxicated patrons. All of these charges were in relation to one patron. The AGCO’s suspension order, dated March 16, 2006, was made Exhibit 1.

Licensee’s Evidence

20. The Licensee did not call any evidence with respect to the issue of sanction.

Registrar’s Submissions

21. Whether the Licensee’s ‘mistake’ was innocent or not, the law regarding the clearance of the signs of service and consumption applies to both patrons and staff. Furthermore, licence holders are required to know the law (that applies to them). The Licensee has previously violated the LLA. All Licensees should receive similar suspensions. Even though it is a first offence (for ‘failure to clear’), it would not be fair that this Licensee would receive a suspension of less than the full five days sought by the Registrar when ‘others’ have received 5-7 day suspensions in the past.

Licensee’s Submissions

22. The previous offence occurred within the first six months of the establishment opening in September, 2004. Since then, it has “come a long way” as a college pub, that is, that Mr. Habash has cleaned things up physically and his establishment also has better clientele now. Mr. Habash believes that when someone does wrong, it should be addressed, but that a five-day suspension for an innocent mistake is “too much” and would not help what he has worked so hard to build up. He says that part of the procedure is to learn from one’s mistakes and to move forward, which Mr. Habash feels he (and his staff) has done both from this incident and the (differing) one in the past. If he is closed down for five days, his staff and customers will “pay the price”. He feels that a “fine” would be more appropriate to mark his (not his staff’s) error. Once told that the Board does not have the jurisdiction to order a fine, he suggested that a one-day suspension would be appropriate. Mr. Habash said that, after February 22, 2007, he immediately discontinued the practice of his staff pre-ordering drinks to consume after clean-up.

Registrar’s Reply

23. Mr. Habash’s staff will only “pay the price” if he chooses not to pay them while the establishment is closed to serve its suspension. To order a one-day suspension would make a mockery of the system when, in most other cases, the Registrar asks for a 10-15 day suspension on a ‘failure to clear/allowing consumption’ charge.

Analysis/Reasons/Decision on Sanction

24. The Board reserved its decision on sanction and has now carefully considered the evidence tendered and the submissions of both parties on this issue. The Board has concluded that a five-day suspension would be too harsh on the facts of this case. It rules that there shall be a two- (2) day suspension of this establishment’s liquor licence for the reasons enunciated below.

25. The Board is satisfied that Mr. Habash is a motivated owner: this is confirmed by Cst. Carne’s testimony, in which he also spoke of the good working relationship he had with Mr. Habash as a licence holder when the constable worked with the community-based response unit. The Board also accepts that, since becoming its owner, Mr. Habash has effected positive changes in his establishment to address earlier problems it faced, as evidenced by the fact there has been no repeat of the previous offence. Also, upon learning the error of his ways, Mr. Habash took immediate steps to discontinue his illegal practice of allowing his staff to consume alcohol more than 45 minutes after the time of closing.

26. Mr. Habash was honest and forthright in his testimony; the Board particularly appreciated that he admitted to having violated the Regulation. While he offered no explanation for why he did not respond to the AGCO’s LOI, the evidence is that he was co-operative with the police constables who dealt with him regarding the incident. The Board believes that Mr. Habash was not blatantly intending to disregard the Regulations and accepts that he honestly, but wrongly, believed that the law as to clearance of service and non-consumption applied to patrons but not to staff. The Board is satisfied that he has learned a lesson as a result of the incident and that he will not repeat his error.

27. In coming to its decision, the Board agrees with the Registrar’s argument that ‘ignorance of the law is no excuse’. It has also considered the Registrar’s submission that a licence suspension of 5-7 days for ‘failure to clear’ is the appropriate sanction. The Board has also taken into account the fact that this establishment does not have an unblemished record, but notes that the Licensee’s previous offence occurred early in the establishment’s history and is unrelated in nature to the matter currently before the Board.

28. The Board is not bound by previous decisions as to sanction and must determine each case on its own merits. In this case, the Board is satisfied that Mr. Habash will make every effort to ensure that he never again breaches the provisions of s. 29 of the O.Reg. Also, the Board believes that on the particular facts of this case a two-day suspension appropriately satisfies the guiding principles of general as well as specific deterrence when determining sanction.

Order

29. The Board ORDERS that liquor licence number 203629, issued to 1610396 Ontario Inc., for premises operating as CAREY’S BAR AND GRILL, 1569 Oxford Street East, Unit 1, London, ON, be suspended for a period of two (2) consecutive days.

30. The 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.

DATED AT TORONTO THIS 26th DAY OF FEBRUARY, 2008

S. GRACE KERR, BOARD MEMBER SGK/sm