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-
1222368 Ontario Ltd. O/A Bow and Arrow Pub (The) Licensee
DECISION ON SANCTION
Panel: Dianne Axmith, Board Member S. Grace Kerr, Board Member
Decision Date: May 22, 2008 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 Toll Free In Ontario: 1-800-522-2876 Website: www.agco.on.ca
Appearances
Registrar, Alcohol and Gaming Commission ) Daniel Alakas, Representative 1222368 Ontario Ltd., Licensee ) Karen Zvulony, Representative
Authorities
1131422 Ontario Ltd. (c.o.b. Clancy's), [2007] O.A.G.C.D. No. 358 Dean Martini’s, [2007] O.A.G.C.D. No. 192 Griffin's Restaurant/Bar, [2003] O.A.G.C.D. No. 288 Stages Restaurant, [1996] O.L.L.B.D. No. 44 El Rancho Restaurant, [1995] O.L.L.B.D. No. 43 Club Ephiphany Restaurant & Lounge, [1996] O.L.L.B.D. No. 341
Allegations
A hearing into a Notice of Proposal number 15595 dated August 22, 2007 to suspend liquor licence number 23776 issued to 1222368 Ontario Ltd. operating as BOW AND ARROW PUB (THE), 1954 Yonge Street, Toronto, Ontario, M4S 1Z4, on the basis of alleged violation of section 43 of Ontario Regulation 719/90 (“O.Reg”) made pursuant to the Liquor Licence Act (“LLA”), was held on January 18 and February 5, 2008 in the City of Toronto.
In its February 22, 2008 decision 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
Decision On Sanction
On behalf of the Registrar Mr. Alakas notes that overcrowding raises a serious issue of public safety. A licence holder is ultimately responsible for operating the establishment in accordance with regulations. The evidence establishes the licence holder did not have an adequate system in place to accurately monitor capacity and should have demonstrated much more diligence and attention to the flow of patrons entering and exiting and moving through the licensed areas. He submits a 10 day suspension is appropriate and relies on numerous decisions of prior Board decisions where substantial suspensions were imposed for similar violations in support.
On behalf of the Licensee, Ms. Zvulony submits the Board should consider the Licensee’s contention that the space is adequate for an increase in capacity. No other infractions were observed on the night in question and the Licensee has taken affirmative preventative steps to ensure overcrowding does not re-occur by hiring an individual who is knowledgeable and experienced in the operation of establishments in accordance with the LLA. She also notes that no new infractions have occurred since March 17, 2007. It is her belief that the license holder now understands the seriousness of overcrowding and that a warning is an appropriate disposition. With respect to the caselaw, she provided the panel with several decisions where a warning was issued and distinguished the decisions relied on by Mr. Alakas. She notes the twenty-one day suspension imposed in Clancy’s was for a fourth offence. In Dean Martini’s a prior warning had been given. This was also the case in Griffin's Restaurant/Bar which had a history of problems controlling capacity.
Reasons
- After careful consideration of the submissions and caselaw, the Board cannot accept the submissions of either party. Overcrowding is indeed a serious public safety issue. Testimony during the hearing suggests that a problem with overcrowding might only happen during special events or celebrations such as was the case on March 17, 2007. That does not mean that the license holder is not expected to have a system in place to prevent overcrowding during these unique times. Clearly this was not the case on that night and the Board is not convinced that one existed as of January 22, 2008. The Board finds that a warning is not a sufficient deterrent for such a serious matter. At the same time, the Board is cognizant of the Licensee’s good record to date. A 10 day suspension for a first offence given all the circumstances is too harsh.
Order
The Board orders that liquor licence number 23776 issued to 1222368 Ontario Ltd. operating as BOW AND ARROW PUB (THE), 1954 Yonge Street, Toronto, Ontario, M4S 1Z4, be suspended for a period of THREE (3) consecutive days.
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 22^nd^ DAY OF MAY, 2008
DIANNE AXMITH, BOARD MEMBER S. GRACE KERR, BOARD MEMBER
DA/sm